Alice Su stories from The Center for Public Integrity

Clean Water Case targets wetlands protection in North Carolina

North Carolina,United States — 2012-08-10T15:24:47-04:00

A federal court has directed that North Carolina’s Waccamaw River watershed receive $1 million in environmental preservation projects, one piece of a broader federal effort to protect wetlands and enforce the Clean Water Act.

The new case centers on Freedman Farms Inc., a corporate hog farm in Columbus County, N.C.

In February, the company was sentenced to five years of probation and ordered to pay $1.5 million in fines, restitution and community service payments. The farm, the government said, violated the Clean Water Act by discharging hog waste from its 4,800 hogs into a stream that leads directly into the Waccamaw River — rather than to treatment and disposal lagoons. Company president William B. Freedman received six months in prison followed by six months of home confinement.

Now, the Justice Department’s Environment and Natural Resources Division has specified that Freedman Farms must pay its $1 million restitution in five annual payments, starting in January 2013, to the North Carolina Coastal Land Trust, an environmental nonprofit dedicated to land conservation in the Waccamaw watershed.

“The court-ordered restitution … will conserve wetlands for the benefit of the people of North Carolina,” Ignacia S. Moreno, Assistant Attorney General of the Justice Department’s Environmental and Natural Resources Division, said in a statement.

The land trust hopes to leverage the restitution payments to raise more wetland protection money from state, federal and private funders, said Executive Director Camilla M. Herlevich.

“Since we know we’ll have a few hundred thousand dollars of match every year, it puts us in a competitive position to go seek other grant funds,” she said. “We hope this will be the first of a series of nice things to happen for the Waccamaw.”

Most of the Waccamaw watershed is privately held, Herlevich said, and the trust intends to ensure the land is “perpetually protected for the public.” She has described the Waccamaw as “unique and wild.” Its watershed contains “some of the most extensive cypress gum swamps in the state,” she wrote, and its headwaters hold “fish that are found nowhere else on Earth.”

The Freedman case is part of the Environmental Protection Agency’s 2011-13 national enforcement initiatives that aim to prevent animal waste from contaminating surface and ground water.

The EPA, which has settled 18 Clean Water Act cases since 2011, calls wetlands “one of the most important ecosystems in the world.” Under the Clean Water Act, companies must obtain a permit from the U.S. Army Corps of Engineers or state agencies to discharge dredged or fill material into wetlands. They include swamps, marshes and bogs.

This May, the EPA and Department of Justice fined California’s Wendt Construction $170,000 for dumping 200 truckloads of material into federally protected wetlands. In March, a family of cranberry farmers in Massachusetts agreed to restore 26 acres of wetlands and pay a $75,000 penalty for damaging three bog sites without acquiring a Clean Water Act permit. In 2010 a dairy owner in Oregon filled in 0.14 acres of wetlands to construct a cow barn — and last October agreed to restore and preserve over 20 acres of wetlands to resolve its Clean Water Act case.

In the North Carolina court case, Freedman and his company pleaded guilty to violating the Clean Water Act.

Director Greg McLeod of the North Carolina State Bureau of Investigation, one of the Freedman Farms investigators, said in a statement that the case shows how state and federal agencies can “hold the polluters accountable.”

“We’ll continue our efforts to fight illegal pollution that damages our water and puts the public’s health at risk,” McLeod said.

Solyndra loan guarantee 'a bad bet from the beginning,' GOP report says

2012-08-06T14:33:05-04:00

The Department of Energy knew its $535 million loan guarantee to solar-panel maker Solyndra Inc. was “a bad bet from the beginning” but was “determined to make Solyndra a stimulus success story at any cost,” the Republican-led House Energy and Commerce Committee concluded in a report released Thursday.

Solyndra failed last year. The committee’s 154-page report follows its approval Wednesday of the No More Solyndras Act, which would disband the DOE loan guarantee program. The bill would also bar any guarantees for applications received after 2011 and require additional reviews by the Treasury Department and Congress for pending and existing loans.

Solyndra, a California-based renewable energy firm and favorite of the Obama White House, received the administration's first loan guarantee in 2009 and was held out as an example of the “promise of clean energy” by the president. Within two years, the company had filed for bankruptcy, firing 1,100 employees in the process.

The Center for Public Integrity and ABC News first reported on the Solyndra loan guarantee in May 2011, revealing that the DOE had rushed to back the firm without fully vetting its economic prospects. The investigation also noted that billionaire George Kaiser, one of Obama’s principal backers in the 2008 elections, was a major Solyndra shareholder.

The Energy and Commerce Committee report reflects an 18-month investigation into the DOE-Solyndra affair, presenting what it calls “a complete picture of the facts and circumstances” surrounding the White House, DOE, Solyndra, and investors like Kaiser.

“Solyndra will be remembered in the history books as a sad hallmark of a newly installed administration that felt it was above the rules, lusting for positive headlines rather than focused on delivering results,” committee chairman Rep. Fred Upton, R-Mich., said in a press release. “Now, Solyndra is a painful reminder of why the federal government should not be in the venture capital business. Our investigation revealed a shocking episode where politics were put before taxpayers and integrity was sacrificed for the sake of corporate favoritism.”

In a statement, White House spokesman Eric Schultz replied, “This is month eighteen of this Congressional investigation and everything disclosed in the 215,000 pages of documents, 14 committee staff briefings, 5 Congressional hearings, 72,000 pages from Solyndra investors, and Committee interview with George Kaiser, affirms what we said on day one: this was a merit based decision made by the Department of Energy. As Republicans won’t answer how much investigation has cost taxpayers, we believe they should instead be focused on legislation to creating jobs and grow the economy."

Democrats on the Energy and Commerce Committee released a memorandum stating, "The Republican report contains obvious inaccuracies, frequent misstatements, cherry picked evidence, and glaring omissions of exculpatory information received by the Committee."

Parts of Pa. law favored by frackers overturned

Pennsylvania,United States — 2012-08-03T13:54:37-04:00

Pennsylvania’s Commonwealth Court overturned parts of the state’s controversial Act 13 on Thursday, returning zoning authority over natural gas drilling to the municipalities and townships that had contested the five-month-old law.

The Center for Public Integrity reported last month that local governments had banded together to challenge Act 13, a state law that overrides municipal zoning jurisdiction. Under the law, companies that use a drilling technique called hydraulic fracturing – commonly known as fracking – to tap gas deposits in shale would have been free to drill even in areas where local officials had voted against wells.

The court declared the act’s zoning sections “unconstitutional, null and void,” throwing out parts of the law that allowed the state to supersede local zoning authority and waive well-spacing requirements.

Dan Pelligrini, the court’s president judge, wrote on behalf of the majority that Act 13 “violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications.”

Governor Tom Corbett, who supported and signed the law in February, announced Friday that his office would appeal the ruling to the Pennsylvania Supreme Court.

“The provisions struck down by the Commonwealth Court are critically important for job creators who are employing more than 240,000 Pennsylvanians, for landowners seeking to exercise their property rights, and for local governments looking for guidance on how they may reasonably regulate oil and gas operations,” Corbett said in a statement. “The provisions are also integral to the enhanced environmental standards and impact fee revenue portions of the Act. Indeed, there would be no Act without each of these crucial pieces.”

In their argument to the court, lawyers for the Commonwealth pointed to the uniformity of statewide drilling standards as justification for overriding local zoning control. The court was not convinced.

“If the Commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and firework plants in residential zones for a variety of police power reasons advancing those interests in their development,” Thursday’s opinion says. “It would allow the proverbial ‘pig in the parlor instead of the barnyard.’”

State Rep. Jesse White (D-Washington), a longtime opponent of unrestricted gas drilling and the disproportionate influence of energy lobbyists -- who spent $1.3 million to support Act 13 -- called the decision a “major victory.”

“Hopefully we can now stop the bullying and the buying-of-influence and truly work together to develop a responsible approach that will allow development of Marcellus Shale while creating a culture of true accountability and responsibility,” White said in a statement. “Today’s decision reaffirms that our constitutional protections are not for sale.”

The Marcellus Shale Coalition, an industry trade group that spent $978,766 on lobbying from January through March this year, released its own response to the ruling. Kathryn Z. Klaber, president of the coalition, said in a statement that the law was premised on providing “certainty and predictability that encourages investment and job creation across the Commonwealth.”

“Lack of uniformity has long been an Achilles heel for Pennsylvania and must be resolved if the Commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits,” the statement reads.

Other sections of Act 13 remain intact, including a new “impact fee” for drillers of gas wells. The drillers must submit payments to the state to offset any negative impacts of fracking. Critics say, however, that the fees are inadequate and there are many restrictions on how they can be used.

U.S. issues fines, orders upgrades at coal-fired power plants

Dairyland Power Cooperative — 2012-07-23T12:08:48-04:00

In the latest settlement targeting toxic emissions from power plants, the Environmental Protection Agency and Justice Department have issued a $950,000 fine and ordered millions in pollution control technology at three coal-fired power plants in Wisconsin.

Plant operator Dairyland Power Cooperative will pay the civil penalty, invest $150 million in pollution control technology and spend $5 million on environmental mitigation projects, the EPA said in a Clean Air Act pact announced June 29.

“This settlement will improve air quality in Wisconsin and downwind areas by significantly reducing releases of sulfur dioxide, nitrogen oxide and other harmful pollutants,” Ignacia S. Moreno, assistant attorney general for the Environment and Natural Resources Division of the Department of Justice, said in a statement.

The upgrades, federal officials said, will reduce annual sulfur dioxide emissions by 23,000 tons and nitrogen oxide emissions by 6,000 tons from 2008 levels.

The settlement resolves litigation concerning Dairyland’s plants in Alma and Genoa, Wis. The Sierra Club filed a civil lawsuit alleging Clean Air Act violations in 2010. Those same allegations were repeated in an EPA notice of violation two years later.

Both the Sierra Club and the EPA contended that Dairyland Power had failed New Source Review and New Source Performance Standards provisions of the Clean Air Act.

Shahla Werner, Wisconsin chapter director of the Sierra Club, told the Center for Public Integrity that the plants had “violated emissions limits for one or all of the following: carbon monoxide, opacity, and particulate matter numerous times over the past several years.”

The company “did not violate the law,” Bill Berg, president and CEO of Dairyland Power, said in a news release. He said the civil penalty was “inappropriate,” but that “a long, drawn out legal battle would not be in the best financial interest of Dairyland’s members.”

The consent decree “recognizes Dairyland’s major investments in air emission controls at our plants and the significant emissions reductions that have already been achieved,” Berg said. “This agreement eliminates the financial risk of pursuing litigation while still achieving the environmental improvements that both we and the other parties involved deem appropriate.”

The operator must install new emissions control equipment on its three largest units and close down three of its Alma facilities. The $5 million Dairyland will pay for community environment and human health projects includes $250,000 each to the U.S. Forest Service and the National Park Service, to mitigate the damage from excess emissions over the years.

“It seems like we got the best deal we possibly could in this situation,” the Sierra Club’s Werner said in a phone interview.

The settlement is part of an EPA initiative that focuses on coal-fired power plants’ compliance with New Source Review standards. Since the initiative began in 1999, the Justice Department and EPA have secured 22 judicial settlements and 23 settlements overall.

Study finds toxins from mountaintop coal mining sites

West Virginia,United States — 2012-07-20T12:38:09-04:00

The U.S. Geological Survey has found high levels of toxic compounds in soil and water around mountaintop-removal mining sites in central Appalachia, a potentially groundbreaking finding with human health consequences.

After a year of testing air, water and soil, researchers concluded that people in mountaintop mining communities in southern West Virginia live in an environment with significant chemical discrepancies from the rest of the state. This could suggest that documented health problems in the region are linked, at least in part, to the mining operations.

Bill Orem, USGS research geochemist and project chief, said mining areas display “unusually high” pH and conductivity levels in the water, abnormal air particulate loading, and irregular levels of polycyclic aromatic hydrocarbons (PAHs) in soil and streams. Several PAH compounds are probable or possible human carcinogens.

“The water chemistry is definitely affected by something,” said Orem, who emphasized that the findings are preliminary and studies are ongoing. The coal-derived compounds in soil samples were also “certainly different from soils we’re seeing in non-mining areas.” The air content of silica particles, which cause lung disease, was “definitely higher.”

“You can see that just from looking at the filters,” Orem said.

Orem cautioned that the USGS would be “prudent” about connecting preliminary results with health problems. “You have to be conservative in your statements. It can’t be driven by people’s feelings,” he said. “It has to be a scientific, data-driven process.”

Still, the early findings have been welcomed by activists, who contend the practice of decapitating mountains to extract coal causes conditions such as cancer and birth defects, in addition to damaging streams and threatening wildlife.

The coal industry, which has long denied that mountaintop mining harms human health, appears poised to challenge the results, filing a public-records request for the USGS data.

Health impact, communities

Few would dispute that a health crisis exists in central Appalachia. West Virginia ranks last among the states in physical health and overall well-being, the 2011 Gallup Healthways Well-Being Index found. Kentucky’s 5th Congressional District, where much mountaintop-removal mining takes place, ranks at the bottom of America’s 436 districts in terms of physical health. West Virginia’s 3rd District comes in at No. 435.

Numerous peer-reviewed studies, including more than a dozen by Michael Hendryx of West Virginia University and various co-authors from 2007 to 2011, have pointed to severe health problems in central Appalachia. People living near mountaintop mining sites had cancer rates 50 percent higher than residents of non-mining areas, the studies said. Rates of birth defects were 42 percent higher. Mortality rates were also significantly elevated, even after researchers adjusted for factors such as smoking, alcohol use and access to health care.

“It’s about a 1-to-1 swap,” said Bob Kincaid, board president of Coal River Mountain Watch, an environmental group. “One dead West Virginian for one mountaintop-removal job every year. I think that’s too steep a price to pay.”

The coal industry is trying to rebut Hendryx’s findings. Dinsmore & Shohl, a large regional law firm that represents mining companies, has filed three Freedom of Information Act requests with West Virginia University, seeking evidence of collusion between Hendryx and environmental organizations.

No such bond exists, Hendryx said. “It’s just ridiculous,” he said of the FOIA requests. ”They’re digging for whatever they can find. They’ve made me waste a lot of time.”

Bo Webb, leader of the Appalachian Communities Health Emergency campaign, said citizens “shouldn’t have to be proving that mountaintop mining is hurting people.” He said the health hazards are easily visible.

“People are getting cancer. It’s crazy what’s going on,” Webb said. “It’s real. It’s scary. Is it going to be my grandchild next? My wife? Me?”

Industry response

Another law firm that represents the coal industry, West Virginia-based Jackson Kelly, has filed a FOIA request on the USGS project. The USGS denied the request because the study was not yet complete, Orem said, but once it is the data will be posted on the agency’s website.

“The coal mining companies are citizens too, so everything is public anyway,” Orem said. “We’re out there trying to ask a scientific question and provide data. We’re a non-regulatory agency. Our job is just to provide information.”

Meanwhile, energy firms have come up with their own explanations for the health issues.

When the studies on birth defects first came out, a law firm hired by the industry, Crowell & Moring, put an item on their website criticizing the papers for failing to account for “one of the most prominent sources of birth defects” — inbreeding. Crowell & Moring later removed the memo and issued an apology, but not before Appalachian media noted the firm’s ties to the National Mining Association and coal giants like Massey Energy, now owned by Alpha Natural Resources.

“Their first response was to say that West Virginians can’t refrain from committing incest,” said Kincaid. “That’s what we’ve come to expect from the coal industries. They absolutely refuse to deal with the reality of what they’re doing.”

“The alert highlighted six scientific factors that the [WVU] study of birth defects in mountaintop mining communities failed to adequately address,” Nicole Quigley, Crowell & Moring’s public relations director, said in a statement at the time. “We did not intend to offend, and apologize for any offense taken.”

Coal mining is not “per se an independent risk factor for increased mortality in Appalachia,” concludes Dr. Jonathan Borak, professor of epidemiology and medicine at Yale University, in a paper funded by the National Mining Association. Borak said poor health in Appalachia was caused by “a very marked cultural problem” characteristic of low-income coal-mining communities.

“Not that these people are inherently defective or stupid or anything else,” Borak said in a phone interview. “They’re just in very unsupportive environments.”

Borak said the coal mining industry “creates a culture” that contributes to a society with low income, little health insurance, less education, high unemployment, heavy smoking and obesity.

Asked why his paper was funded by the mining group rather than Yale, Borak said he would have had to undergo a “very complicated grant application process” otherwise. “Yale doesn’t pay salary to do what you want to do,” Borak said. “I had to pay the rent.”

Carol Raulston, senior vice president of communications at the National Mining Association, sees no “direct connection” between coal mining and sickness.

“People with lower incomes have poor health care. They have poor diets. They have a lot of issues that continue to cause bad health,” Raulston said. “You have very similar health outcomes in Detroit. But no one’s talking about putting a moratorium on automobile production. A lot of it is related to poverty.”

Coal cult control

Webb, the activist, said central Appalachia does suffer from a cultural problem — acquiescence to the coal industry. “West Virginia is not a democracy,” Webb said. “Everyone is beholden to, owned by, bows down to the coal industry.”

Activists have asked Congress to place a moratorium on mountaintop-removal permitting until comprehensive health studies are completed. The Appalachian Communities Health Emergency Act, sponsored by 15 House members, is supported by environmental groups Earthjustice, the Sierra Club, West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition and Southern Appalachian Mountain Stewards.

Bill co-sponsor Rep. Louise Slaughter, D-N.Y., originally from Harlan County, Ky., dismissed the coal industry’s attempts to invalidate the work of Hendryx and other researchers.

“I’m a microbiologist. I have a master’s degree in public health,” Slaughter said. “I don’t believe it.”

Yet Slaughter said there was “zero” chance the bill could pass in the Republican-controlled House, especially with the Appalachian representatives’ pro-industry leanings. “There’s no question that the mining interests really own the place,” Slaughter said. “I don’t see sudden reversal of that.”

According to the Center for Responsive Politics, the top recipient of campaign contributions from the mining industry in both the 2010 and 2012 election cycles is Sen. Joe Manchin (D-W.Va.), who received $298,098 for 2010 and more than $275,000 so far for 2012. In the House, Rep. David McKinley (R-W.Va.) is the top recipient with more than $280,000 in this election cycle so far.

Manchin and McKinley did not respond to interview requests Thursday from the Center for Public Integrity.

Sick and stuck

Asked how legislators might be convinced to halt mountaintop mining, Slaughter said that “elections matter.”

But Webb said most of his neighbors were reluctant to speak against the coal companies. “They’re told, ‘If you step up and your nephew, cousin or son works for the coal company, they’ll get fired,’ ‘’ he said. “They just ramp up the heat on the citizens, and they clam up.”

Webb, a Vietnam War veteran and sixth-generation native of West Virginia’s Coal River Valley, comes from a family of miners. When he began fighting against mountaintop removal, Webb said, he became “hated” by neighbors and cousins who thought he was threatening their jobs. He said some locals tried to run him over with a car in 2005.

“They just don’t want to believe it. They think mountains are forever and coal is forever,” Webb said. “They refuse to look at the data.”

Coal River Mountain Watch spearheaded a renewable energy campaign in 2009, proposing a wind farm as an alternative to mining on Coal River Mountain. Webb said the project showed that wind farms could bring in over $1.2 million of sustainable revenue to the valley annually. In contrast, he said, mountaintop mining would produce an estimated $32,000 a year for a maximum of 11 years, after which there would be no coal left. The project failed.

Three mountaintop removal permits have already been approved on Coal River Mountain.

“The county commissioners actually cried with tears and said, ‘The coal industry has been so good to us,’ ” Webb said. “But the coal company is going to take their jobs. They’re down to the last piece of coal. They’re going to walk out and our people are going to be left with nothing but sickness.”

Holly Clark, another supporter of the reform campaign, became concerned over coal mining’s impact on her community’s health. “I’m sitting in church listening week after week about all the cancer and tumors,” said Clark, from Fayetteville, W.Va. “I just wanted to do something.”

Other residents of Appalachia seem unlikely to push for change — unless the health risks become undeniable. Activists hope the USGS data will have that effect.

“We don’t see this as a Democratic or Republican issue. We see this as a human rights issue,” Kincaid said. “Appalachia cannot afford to wait. We’ve been sacrificed for far too long.”

BP to pay $13 million for safety violations at Texas refinery

BP Plc — 2012-07-12T15:46:40-04:00

Oil giant BP has agreed to pay $13 million in fines to settle more than 400 safety violations at a Texas refinery that suffered a catastrophic explosion in 2005, Labor Secretary Hilda Solis said Thursday.

The violations stemmed from a 2009 inspection of BP’s Texas City refinery by the Occupational Safety and Health Administration. OSHA conducted the inspection to see if BP had corrected safety problems that led to the 2005 blast, which killed 15 workers and injured at least 170. It hadn't.

The settlement “will help ensure that workers don’t have to sacrifice their lives for their livelihood,” Solis said in a teleconference with reporters. “This agreement will save lives.” BP has promised to fix all the cited problems in Texas City by the end of this year.

Jordan Barab, deputy assistant secretary of labor for occupational safety and health, said that none of the uncorrected problems is “imminently dangerous.”

BP paid $21 million in fines for violations related to the 2005 explosion. After doing its follow-up inspection in 2009, OSHA cited the company for 270 “failure to abate” violations. BP agreed in 2010 to pay $50.6 million more to resolve those citations.

During the same inspection, OSHA found 439 additional violations and proposed penalties of almost $31 million. The $13 million settlement announced Thursday resolves all but 30 of those violations, which are still being challenged by BP.

BP’s safety performance “significantly improved” after the 2009 inspection and fines, Barab said. “The takeaway is that enforcement works,” he said.

In a press release, Iain Conn, BP’s global head of refining and marketing, said the company aims to be a leader in process safety — the prevention of potentially calamitous fires, explosions and chemical releases. “Today’s agreement represents another milestone in our commitment to safe and compliant operations,” Conn said.

Solis said OSHA intends to “make sure BP lives up to their end of this deal — both to their legal and their moral responsibility to protect the lives of workers who make their company what it is.”

In May 2010, a month after BP’s Deepwater Horizon platform exploded in the Gulf of Mexico, killing 11 workers and spilling about 5 million barrels of oil, the Center for Public Integrity reported that two BP refineries — in Texas City and Toledo, Ohio — accounted for 97 percent of the flagrant violations cited by OSHA during the previous three years.

OSHA reforms Voluntary Protection Programs

2012-06-29T06:00:01-04:00

Citing a 2011 Center for Public Integrity investigation, a Labor Department official said Thursday that the Occupational Safety and Health Administration has reformed a program that rewards workplaces reporting lower-than-average injury and illness rates.

OSHA’s Voluntary Protection Programs (VPP), which exempt “model workplaces” from routine inspections, were established in 1982. VPP tripled in size between 2000 and 2011, as OSHA’s inspection staff diminished and membership requirements were relaxed. The Center’s investigation found that at least 80 workers had died at VPP sites during that period.

At a hearing before a subcommittee of the House Committee on Education and the Workforce, Jordan Barab, the Labor Department’s deputy assistant secretary for occupational safety and health, said the department “is committed to VPP. But like every other federal agency, we need to make some very hard decisions about how to allocate our limited resources where we will get the most worker protection bang for our buck.”

After the Center’s investigation, an internal OSHA workgroup reviewed VPP and submitted recommendations for improved management, Barab said. Reforms include increased funding for a program that offers free advice to small businesses on worker safety practices, he said. A whistleblower program has been expanded, with four new laws designed to protect workers from retaliation for reporting potential safety hazards.

Barab also reported a shift away from incentive programs based on keeping injury and illness rates low. Such programs often discourage workers from reporting injuries, he said; OSHA now promotes programs that encourage and reward employee involvement instead.

“We’ve seen companies, for example, offer a pizza party or enter workers into a raffle if they met a goal of not incurring reportable injuries over a specified period of time,” Barab said. “Programs like these, while possibly well intentioned, ultimately discourage workers from reporting injuries. Unreported injuries that are not investigated cannot be used to help prevent future injuries. This is not what we want and ultimately, I do not think it is what VPP participants want, either.”

Because of VPP’s rapid growth, OSHA has accumulated a backlog of reapproval evaluations for participating companies. Instead of easing standards, OSHA will focus on “maintaining the integrity of the program,” aiming to eliminate the backlog by the end of 2012, Barab said.

R. Davis Layne, executive director of the VPP Participants’ Association (VPPPA), disagreed with OSHA’s new approach.

“OSHA did not think out all of the implications of this new policy,” Layne said. He said some member companies had been told that “any incentive program, regardless of its nature,” could jeopardize their VPP status.

Local leaders sue for right to control location of gas wells

Pennsylvania,United States — 2012-07-17T07:47:59-04:00

When Pennsylvania passed a state law that stripped local authority over where potentially hazardous natural gas wells could be drilled, cities and townships decided to take matters into their own hands.

Seven municipalities from across the state have filed a lawsuit in Pennsylvania’s Commonwealth Court challenging the constitutionality of Act 13, a law passed in February that charges an impact fee for natural gas wells but also overrides local governments’ zoning authority. The case was argued on June 6 and is currently under review.

At first glance, the impact fee of up to $50,000 per well seems to put wealth from drilling on the Marcellus Shale into citizens’ hands. Detractors of Act 13 say, however, that it is a Trojan Horse of unwelcome stipulations.

Thanks to the law, doctors can find out what chemicals are used in fracking, the controversial drilling technique that environmentalists say turns their water taps into flamethrowers and poisons the air. But they are bound by a confidentiality clause that prevents them from telling their patients what those chemicals are. Local counties get the impact fee, but it comes with strict regulations on how it can be spent. They can use it to provide low-income housing for gas workers, for example, but not to conduct air quality testing.

Most importantly, municipal zoning jurisdiction has been overruled. Now gas companies can drill wherever they like, even if local councils vote to keep the wells out of their jurisdictions.

“It gives industry the right to tell us how we’re going to plan our townships rather than the other way around,” said David M. Ball, a petitioner in the lawsuit and councilman of Peters Township, Washington County.

Sen. Tim Solobay, D-Canonsburg, oversees three of the seven municipalities that filed the Act 13 lawsuit. Local activists and council members began campaigning against the act back when it was still House Bill 1950. They made phone calls, sent letters, protested and met with legislators in Harrisburg, but to no avail.

“The gas industry is very strong,” said Jan Milburn, president of the Westmoreland Marcellus Citizens Group. “It’s all about money. It’s not really about what constituents want.”

Solobay said he’s raised “well over $2 million to $3 million of campaign contributions” in the last 15 years and energy companies make up less than 5 percent of the total. “So I can’t imagine where people would think they’re a major influence on decisions I make,” he said.

But natural gas drilling has only become prominent in Pennsylvania in the past few years, since the development of fracking suddenly made the Marcellus Shale a lucrative resource.

According to the National Institute on Money in State Politics, Solobay raised just $500 from the oil and gas industry in his 2008 campaign. In the 2010 election, the total jumped to $16,750. The following year, he voted in favor of Act 13.

Sen. John Pippy, a Republican who also represents several of the petitioning townships in Washington and Allegheny County, received $700 from oil and gas companies in 2008. In 2010, that amount jumped to $3,650 despite the fact he was not up for re-election that year. He voted in favor of Act 13.

Rep. Jesse White, a Democrat, serves several of the same areas as Solobay, including Mount Pleasant Township, one of the petitioners in the lawsuit and home of the first Marcellus Shale drill site in Pennsylvania. White is a former supervisor of Cecil Township, another petitioner that plays host to heavy natural gas activity. He opposes Act 13 because of its disregard for local accountability.

“By taking away all the zoning regulations, the municipality — and in extension, the people — don’t even know where all this stuff is,” White said. “It’s a very bad thing in terms of transparency.”

So far this year, the oil and gas industry has contributed $250 to White’s campaign and $5,250 to Solobay's, according to the National Institute on Money in State Politics.

Supporters of Act 13 say it promotes industrial development, bringing jobs and economic opportunity to Pennsylvania. The Marcellus Shale Coalition, an industry trade group, says the legislation will provide the industry “greater certainty to operate across Pennsylvania” while incorporating a “broad-based group of interests across industry, government, and the conservation community.”

Ball said Republican Gov. Tom Corbett, a favorite of the oil and gas industry, had been “very adamantly behind pushing this bill. They put a lot of pressure on Republican legislators to go with the game plan.”

But Solobay is a Democrat. According to Ball, however, his headquarters sits “right in the middle of the drilling area.” Range Resources, Chesapeake Energy, and EQT Corp. have all given to his campaigns, according to the Pennsylvania Department of State.

Solobay said that energy companies wouldn’t “come in and put a six-, seven- or eight-acre development right beside a school or residential area” because of potential bad PR.

“They just want to do business. They don’t want to cause headaches, grief and aggravation,” he said, “I think they’ll work with communities, even those that may have had stricter policies than what ended up in Act 13.”

In 2010, the oil and gas industry contributed $499,025 to Pennsylvania’s Senate and House candidates. In 2012, state records report $175,615 in contributions so far.

Brian Coppola, one of the lead petitioners trying to overturn the law, acting both individually and as supervisor of Robinson Township, said the industry spent millions of dollars to get Act 13 passed.

“I heard that in court from the industry attorney. It’s their act,” Coppola said.

The Marcellus Shale Coalition spent $978,766 on lobbying from January through March this year, according to state records. Other top lobbying spenders included gas drillers Range Resources at $133,766, Chesapeake Appalachia LLC at $111,099, Shell Oil at $102,400, and Spectra Energy Transmission at $48,088.

Many of the municipalities are open to natural gas drilling, they just want local authority over where the industry operates.

“The entire board of supervisors is conservative Republicans, and we’re pro-drilling,” Coppola said. “But we’re mindful of the fact that we need to do it right.”

Ball said Peters Township councilmen had spent two years developing a mineral extraction ordinance, holding public hearings on multiple drafts in a “long and involved process.” They researched what was involved in the drilling, what to be aware of and how to create a policy that was satisfactory to all parties. Finally, they issued an ordinance that they felt “protected the township to the maximum extent.”

“The people that own gas rights were able to take advantage of their property as well,” Ball said. “It was a very good ordinance, the best we could probably do.”

Act 13 would override all the townships’ efforts.

Opponents of the impact fee also fear that this violation of home rule could easily extend to other industries.

“What happens when the next industry comes down the line, like the homebuilders’ industry?” Ball asked. “Pretty soon, what does zoning even mean?”

Coppola said he receives “hundreds and hundreds of letters” every day from townships and boroughs in support of the lawsuit.

Last month, the Pennsylvania State Association of Township Supervisors, which represents 1,455 townships comprising 95 percent of Pennsylvania’s land area, passed two resolutions stating opposition to “any legislation that would remove, reduce or inhibit local government authority” or “pre-empt the existing authority of townships to regulate land use.”

“I’ve personally not heard of one municipality that has said they support the zoning provisions of Act 13,” Ball said.

Whether the Commonwealth Court affirms Act 13 or not, White, Coppola, Milburn and Ball agree that the law will most likely be appealed to the Pennsylvania Supreme Court.

“Act 13 eventually is going to be undone,” Coppola said. “It strips away too many rights of individuals. People are just going to go crazy.”

Environmentalists decry 'irresponsible' lobbying by coal-burning utilities

2012-06-21T09:58:40-04:00

The Natural Resources Defense Council condemned eight coal-burning utility companies Tuesday for flouting the Clean Air Act and spending millions to lobby against pollution controls.

In a report, the NRDC detailed how the companies have poured money into blocking or delaying clean air protections. The American public pays the price in the form of illnesses, higher health costs and more than 10,000 deaths annually, the environmental group said.

The report was released on the eve of a Senate vote on a resolution by Sen. James Inhofe, R-Okla., to nullify an Environmental Protection Agency rule aimed at reducing emissions of mercury and other air toxics from power plants.

“The ‘Gang of Eight’ utilities are putting their profits over protecting kids and communities from deadly, dangerous air pollution,” Pete Altman, the NRDC’s climate and clean air campaign director, said during a news teleconference. “The health and welfare of millions of Americans, including children, who are most vulnerable to air pollution, hang in the balance.”

The utilities pinpointed by the NRDC are AEP, Ameren, DTE Energy, Energy Future Holdings, FirstEnergy, GenOn, PPL and Southern Company. They are based in Ohio, Illinois, Texas, Michigan, Pennsylvania and Georgia.

The report uses 2011 emissions data from each of the utilities’ power plants, as reported to the EPA, to calculate health and economic impacts. An analysis done for the NRDC by consulting firm MSB Energy Associates Inc. estimates a toll of 10,400 deaths, 65,000 asthma attacks, 6,600 hospital visits, 3.4 million lost workdays, and $78 billion in total costs to the U.S. economy in 2011.

John Walke, clean air director at the NRDC, said the group acknowledges that companies are making an effort to reduce pollution. At the same time, however, they are filing lawsuits and hiring lobbyists to try to undermine EPA standards, Walke said. He called this “paradoxical.”

“We’re not criticizing their right to lobby,” Walke said, “We’re criticizing the fact that the objectives of their lobbying are irresponsible and harmful.”

The eight companies "spent a combined $67 million lobbying Congress between 2010 and the first quarter of 2012, including on EPA clean air standards and authority, among other topics," according to an NRDC press release.

Five of the companies responded to requests for comment from the Center for Public Integrity.

“Ameren is not fighting EPA rules,” said spokesman Brian Bretsch, “Our company has a responsibility to educate regulators as to the impacts of rulings on our customers, our company, and our shareholders, and we do so.”

Ashley Barrie, a spokeswoman for Energy Future Holdings, said the utility has a legacy of “meeting or outperforming all federal and state environmental rules, regulations and laws. As to lobbying, we participate in the legislative process just like environmental groups do.”

Several firms emphasized their spending on environmental upgrades. FirstEnergy reported spending $10 billion since 1970. PPL said it had spent $2.7 billion since 2005 and planned to commit $2.3 million more by 2015 to meet EPA rules designed to cut down on interstate air pollution and mercury emissions from power plants. Southern Company said it had invested $8.3 billion and would spend at least $1.5 billion more in the next three years.

Walke and Altman highlighted the American Coalition for Clean Coal Electricity (ACCCE) and Electric Reliability Coordinating Council (ERCC) as key lobbyists against clean air rules.

Lisa Miller, the ACCCE’s vice president of media affairs, responded that the coal industry has invested more than $100 billion in clean-coal technology and reduced emissions by 90 percent in the last 30 years.

Scott Segal, executive director of the ERCC, called the report’s data on political expenditures “simplistic at best.” He said the NRDC was “hardly objective,” given its own history of litigation and lobbying on air rules, and dismissed the report’s health impact numbers as “gross exaggerations designed to scare the public.”

Walke said the methodology used in the report was based on a modeling system developed by Abt Associates, whose practices have been the “gold standard” used by both Democratic and Republican administrations for years.

Bush EPA chief urges action on chemical hazards

2012-06-13T10:06:04-04:00

Christine Todd Whitman, Environmental Protection Agency chief under George W. Bush, urged the EPA Tuesday to use its authority under the Clean Air Act to impose stricter safety standards on American chemical facilities vulnerable to accidents or terrorist attacks.

“I cannot understand why we have not seen some action when the consequences of something happening are so potentially devastating,” Whitman said in a teleconference that included representatives of labor and environmental groups.

As Bush’s EPA administrator, Whitman was prepared to unveil a proposal requiring chemical plants to use safer processes in the months after 9/11. Under the Clean Air Act’s general duty clause, Whitman said, the EPA had the authority to require hazard reduction at facilities at risk of catastrophic chemical releases.

But the plan was scuttled by the White House, which maintained that chemical hazards could be better addressed by legislation, Whitman said. Congress had moved quickly to pass bills on water safety and bioterrorism, and the EPA thought it was “on the right track” to pass a bill on chemical security as well.

Bob Bostock, Whitman’s homeland security adviser at the time, said EPA officials expected litigation from the chemical industry if it used the general duty clause. “It wasn’t so much that we were afraid we’d lose the litigation,” Bostock said. “We didn’t want to be tied up in litigation for years and years, leaving this unaddressed.”

Legislation never came. Now, Whitman and others are pressing the EPA to act on its own. In March, the National Environmental Justice Advisory Council wrote a letter to EPA Administrator Lisa Jackson, asking her to use the general duty clause to address the “catastrophic risks” associated with current regulations. Whitman wrote her own letter to Jackson in April, also urging EPA action.

A few weeks ago, more than 100 labor, environmental and public health organizations signed a letter asking President Obama to “take executive action to ensure that high-risk chemical facilities fulfill their obligation under the Clean Air Act … ” The letter quotes then-Sen. Obama’s own 2006 reference to chemical plants as “stationary weapons of mass destruction spread all across the country.”

Whitman acknowledged the difficulty of EPA action given this year’s election and the anticipated pushback from industry and the chemical lobby. But Jackson at least has “a White House that is willing to move forward,” Whitman said. If Obama does not get reelected, she said, it will be “even more difficult” to convince the EPA to use its Clean Air Act authority.

Although Whitman never received an official response to her April letter, she said Jackson had given a “green light for internal assessment” of the chemical security issue. The question, Whitman said, is whether anything will be done.

“The likelihood of something happening before the election is very slight,” Whitman said. “But we cannot continue to let politics trump policy. We’ve got to draw the line at some point.”

In an email to the Center for Public Integrity Tuesday evening, an EPA spokeswoman wrote, "We're not going to comment on internal discussions, but no decisions have been made."

Some chemical companies oppose EPA action by pointing to the Department of Homeland Security’s Chemical Facility Anti-Terrorism Standards (CFATS), an interim set of standards passed in 2006 that asks high-risk facilities to assess and report on their security procedures.

Scott Jensen, a spokesman for the chemical industry’s main trade group, the American Chemistry Council, said in a statement that CFATS has “improved security for thousands of facilities.”

Yet CFATS exempts thousands of plants, including about 2,400 water treatment facilities and most oil refineries. It also explicitly bars the Department of Homeland Security from requiring specific security measures, such as adopting safer processes.

Industry officials say chemical security is being addressed by CFATS and EPA action would be duplicative.

But Rick Hind, legislative director for Greenpeace, said, “It’s not a question of duplication. It’s a question of cracks the size of the Grand Canyon. The majority of the industry is escaping.”

Clean Air Act case brings $1 million penalty

Mount Vernon,Ohio,United States — 2012-06-11T16:00:41-04:00

The Environmental Protection Agency has issued a $1 million fine against a global plastics producer for alleged Clean Air Act violations at its plants in two small, polluted communities seven hours apart in Alabama and Indiana.

The civil penalty against SABIC Innovative Plastics, announced May 31, targets leak detection and repair failings that resulted in hundreds of tons of hazardous air pollutant releases every year, the federal agency said.

SABIC, a global producer of polymers and thermoplastics, is a top employer in the two towns involved: Burkville, a rural community best known for hosting Alabama’s annual Okra Festival, and Mount Vernon, a town of just under 6,700 nestled in the southernmost tip of Indiana.

The EPA’s 15-count complaint said SABIC skirted Clean Air Act rules on monitoring and repairing equipment leaks, complying with chemical plant regulations and reporting known violations. SABIC agreed to the penalty to settle the case.

The Mount Vernon plant recently won several environmental awards. In 2011, the National Pollution Prevention Roundtable recognized it with a Most Valuable Pollution Prevention award. This April, the plant won three Responsible Care Energy Efficiency Awards from the American Chemistry Council.

SABIC said in a news release at the time that such recognition demonstrates its commitment to “minimize environmental impact while strengthening operational excellence.”

Now, SABIC must reform its monitoring practices, replace valves, reengineer emission controls and invest in an environmental project to control hazardous air emissions. The upgrades will cost the company $5.3 million, the EPA said, and reduce air emissions by up to 137 tons per year.

The EPA has brought several other recent Clean Air Act cases. Last November, for instance, Dow Chemical in Midland, Mich., agreed to pay $2.5 million to settle charges of clean-air, clean-water and solid-waste violations.

“Communities near large industrial facilities depend on EPA to protect public health and the environment by enforcing our nation’s environmental laws,” said Cynthia Giles, an EPA assistant administrator, in a statement.

Yet some locals question the significance of the EPA’s civil penalty.

“One million dollars between two plants isn’t much,” said Mike Callis, a cow, soybean and vegetable farmer who lives two miles from the Alabama plant. “These big corporations just pay the fines and keep on ticking.”

And, activists say, the environmental challenges add another hurdle for low-income communities like Burkville.

“When you’re poor, you’re so busy surviving. You have different priorities than people who are not poor,” said Barbara Evans, former organizing coordinator at WildLaw, an environmental law firm that closed from lack of funding. “It’s hard to say to people, ‘Are you worried about clean air?’ ”

The SABIC plant in Burkville has been fined before for environmental violations, paying a $60,000 clean air penalty in 2010. Federal records show its released chemicals decreased to less than 100,000 pounds of on-site releases annually for 2007 through 2009, then increased to 283,673 pounds in 2010.

SABIC Innovative Plastics was formed in 2007 when General Electric sold GE Plastics to Saudi Arabia’s largest public company, SABIC, for $11 billion. Its Mount Vernon location was founded in 1960 as GE’s first plastics facility and remains SABIC’s largest plastics plant in the U.S.

SABIC said it is committed to “100 percent compliance” with state and federal regulations.

According to a company statement, EPA compliance audits begun in 2005 had found “concerns” at two SABIC sites. The company “immediately began to address the concerns,” the company said, working to “ensure full compliance going forward.”

Under the EPA’s Clean Air Act Stationary Source Compliance Monitoring Strategy, any facility identified as a “major source” of air pollutants should receive a full compliance evaluation every two years. An EPA statement said these audits and most “day-to-day enforcement” are delegated to state and local authorities. The federal agency steps in “when addressing complex cases” or “when states fail to take necessary action,” the EPA told the Center for Public Integrity.

The EPA initiated its State Review Framework system in 2004 to assess state enforcement of federal clean air, clean water and solid waste laws.

Alabama’s review in 2005 returned 17 records of state inadequacy. Three years later, the second such report cited 18 shortfalls, including inaccurate reporting of facilities’ compliance statuses.

Indiana’s first round of framework reviews in 2005 returned 35 records of inconsistency with national standards, including failure to identify high production pollution sources, neglecting to report enforcement history in monitoring reports, and unjustified reductions of penalties.

John Blair, a photojournalist and president of environmental activist group Valley Watch, has been fighting industrial pollution in Indiana since the early 1990s, when the plant belonged to GE.

In 1999, GE’s Mount Vernon plant ranked as the fourth-highest toxic chemical release source in Indiana, reporting 2.5 million pounds of on-site releases. From 2006 on, releases were considerably lower, about 1.5 million pounds per year, until a 2010 increase to 2.2 million pounds of on-site chemical releases.

The chemicals include highly corrosive phenol and ethylbenzene, which can damage the liver, kidney and central nervous system.

“People in the medical community know we have this problem, but don’t want to stand up and do anything about it,” Blair said. “It’s just tradition to let business do what they want in Indiana.”