Saturday, February 15, 2014

PNN - Environmental Special

PNN - 2/16/14

1. A New Spill in Chemical Valley
A coal preparation facility spilled an unknown quantity of coal slurry into a creek in Kanawha County, W.V. Tuesday morning, according to West Virginia officials.

As the Charleston Gazette reports, the spill occurred at Patriot Coal’s Kanawha Eagle operation, which is located near Fields Creek. The operation is near Winifrede, WV — southeast of Charleston, the state’s capitol and site of last month’s major chemical spill. The amount of coal slurry that spilled is still unknown, but a West Virginia DEP spokesman told the Charleston Gazette that the spill could probably be characterized as “significant.”
According to the county’s emergency services director, the spill was caused by a break in the eight-inch slurry line that ran between the preparation plant and the company’s refuse impoundment, which occurred sometime between midnight and 5:30 in the morning. According to the DEP, the company in charge of the facility reported the spill to the DEP at 7:30 a.m.
Workers have shut down the slurry pumps to stop the spill, but the slurry has contaminated the creek, which flows into the Kanawha River. Responders are trying to contain the spill to Fields Creek in the hopes that it does not reach the Kanawha River. Officials say if the spill does reach the river they don’t think it will affect drinking water because there are no water intakes downstream of the spill.

Coal slurry is a mix of solid and liquid waste that’s created from coal preparation, a process that includes washing coal with chemicals like MCHM. The DEP said in a statement that the facility utilizes a frothing chemical called Flomin 110-C that contains MCHM, the same chemical that spilled from a Freedom Industries holding plant and contaminated water for 300,000 West Virginians last month. Lawmakers have been grappling with how to prevent similar spills from happening in the future — West Virginia Sen. John Unger (D), introduced abill aimed at regulating above-ground storage tanks that was passed unanimously in the Senate, but Tuesday morning’s spill proves that other holding facilities, including impoundments, are also at risk of spills.

Slurry has spilled before in West Virginia — in 1972, a coal slurry impoundment dam in Logan County burst, spilling 132,000,000 gallons of liquid onto small mining settlements, killing 125 people and injuring 1,121. And in October of 2000, a coal slurry spill in Martin County, Kentucky, spilled 306,000,000 gallons, polluting 100 miles of waterways and killing aquatic life and plants in West Virginia and Kentucky


2. Got you by the cell phone

Feb 7 (Reuters) - A senior U.S. State Department officer and the ambassador to Ukraine apparently used unencrypted cellphones for a call about political developments in Ukraine that was leaked and touched off an international furor, U.S. officials said in Washington on Friday.

In the call, Assistant Secretary of State Victoria Nuland used an expletive in apparently disparaging the idea of relying on help from the European Union in negotiating a political solution in Ukraine.

The U.S. officials said the conversation between Nuland and ambassador Geoffrey Pyatt was likely intercepted at the Ukraine end and that they believe both Ambassador Pyatt and Nuland were speaking on cellphones.
An official familiar with the matter said State Department employees, including officials at a senior level, are not issued cellphones that use encryption.

State Department spokeswoman Jen Psaki confirmed this at a regular briefing. "All Department of State government-owned BlackBerry devices have data encryption. However, they don't have voice encryption," she said.
The U.S. officials said Pyatt was in Ukraine at the time of the call, although it was not clear where Nuland was.

They did not give the date of the call, although they said it was recent. The issues that Nuland and Pyatt discussed occurred in the last few days of January.

The audio clip was first posted on Twitter by Dmitry Loskutov, an aide to Russian Deputy Prime Minister Dmitry Rogozin, a diplomatic source said. A second intercepted audio conversation, between senior European Union diplomats, was posted on YouTube around the same time.

The Obama Administration has not formally acknowledged the authenticity of the audio clip or accused any specific party of recording it.

Nuland, who met President Viktor Yanukovich in Kiev on Thursday, described the bugging and leaks as "pretty impressive tradecraft" but said it would not hurt her ties with the Ukrainian opposition.

In the call, apparently made at a time when opposition leaders were considering an offer from President Viktor Yanukovich to join his cabinet, she suggested that one of three leading figures might accept a post but two others should stay out. In the end, all three rejected the offer.
The leak coincided with accusations from Moscow of U.S. interference in Ukraine. Washington and European countries back those opposing Yanukovich, a close Kremlin ally.

On Friday one senior U.S. official in Washington said: "The quality of the recording would certainly indicate that this was not the work of simple hackers, but rather an intelligence service with an interest in distracting from the efforts of the people of Ukraine to recover their own government."
The posting of the conversation surfaced as the U.S. faces international uproar over its own electronic eavesdropping disclosed by former National Security Agency contractor Edward Snowden last year.

One document leaked by Snowden appeared to indicate that the U.S. had tapped the cellphone of German Chancellor Angela Merkel, prompting President Barack Obama to announce that spying on foreign leaders was being curtailed.

Mark Weatherford, a former deputy under secretary for cybersecurity with the U.S. Department of Homeland Security, said that some senior government officials were issued mobile handsets that are capable of encrypting conversations but typically do not use them.

"It is expensive. They are different phones. They are cumbersome," said Weatherford, now a principal with the Chertoff Group, a Washington-based consulting firm led by former senior U.S. security and intelligence officials.
He said that the conversation that was intercepted would have remained private had the two officials used encrypted devices.

Chris Morales, research director with the cybersecurity firm NSS Labs, said hacking into an unencrypted mobile phone line does not require a lot of training and can typically be done using equipment and software that is widely available. (Additional reporting by Arshad Mohammed and Jim Finkle; editing by David Storey and David Gregorio)


A new website featuring journalist Glenn Greenwald and funded by the billionaire founder of eBay was unveiled early Monday, with two stories about US government surveillance.

The site, called the Intercept, reported Monday that the National Security Agency has used cell phone geolocation to help pinpoint targets for US drone strikes overseas, and published previously unseen photographs of major US intelligence facilities.

The Intercept is part of a suite of planned sites to be published by First Look media, founded by eBay chairman Pierre Omidyar. Its editors are Greenwald and fellow journalists Laura Poitras and Jeremy Scahill.
The Intercept will focus on reporting based on documents released by former NSA contractor Edward Snowden, the site’s editors said in an introductory statement. “Our focus in this very initial stage will be overwhelmingly on the NSA story,” the statement said.

The involvement of the NSA in the drone program was previously reported, based on information found in the Snowden documents. However, the Intercept story, written by Scahill and Greenwald, appears to add significant new sourcing from inside the drone program itself, citing an unnamed “former drone operator for the military’s Joint Special Operations Command (JSOC) who also worked with the NSA.”

The story quotes the former operator as saying that innocent people have “absolutely” been killed in strikes based on geolocation techniques that can find a mobile phone but cannot verify who is holding it.

The NSA declined to respond to questions for the article, the Intercept said.
The editors accelerated the launch of the site, their statement said, to fight intensifying attacks on journalists working on stories about government surveillance and other secret programs. Director of national intelligence James Clapper told Congress last month that Snowden had committed a crime and had “accomplices,” in a reference widely interpreted as threatening to journalists working on stories based on the Snowden documents.
Congressman Mike Rogers, a Michigan Republican who heads the House intelligence committee, last week called Greenwald “a thief.”
“None of this will deter the journalism we are doing,” the editors’ statement said. “A primary function of the Intercept is to insist upon and defend our press freedoms from those who wish to infringe them.”


4. Obama's Pussy Riot
Are the Oak Ridge Defendants Obama's Pussy Riot?
By Marc Ash, Reader Supported News
10 February 14

n February 18, 2014, Federal Judge Amul Thapar will sentence an 83-year-old Roman Catholic nun and 2 others to what could be terms long enough to ensure that all three will die in prison.

What did Sister Megan Rice, 82, and Michael R. Walli, 63, of Washington and Gregory I. Boertje-Obed, 57, of Duluth, Minnesota, do? They cut through three fences with a pair of bolt cutters, hung banners, painted biblical slogans, and threw blood on a wall. Oh yes, and they embarrassed the United States government.

Quietly, with little or no mention by the American corporate press, the U.S. cache of political prosecutions and prisoners is significantly on the rise. Lynne Stuart, Tim DeChristopher, John Walker Lindh, John C. Kiriakou, Bradley (Chelsea) Manning and more recently the so-called "NATO 3" are but a few examples of novel government prosecutions resulting in unprecedented prison sentences. In each case, as in Oak Ridge, the defendants held strong political beliefs in opposition to the U.S. government.

The government says that that Rice, Walli and Boertje-Obed committed acts that amounted to sabotage, and they had little difficulty convincing a Tennessee jury. The problem is that there was no evidence of sabotage presented by the government. There was evidence of trespassing and vandalism, but the sabotage charge was pure hyperbole.

If being found guilty of sabotage were not worrisome enough, Judge Amul Thapar’s remarks regarding a recent sentencing hearing suggest that he will show no leniency: "The critical point is contrition, and I don't think any of the defendants are contrite about what they did. The defendants will not be given acceptance of responsibility."

Upon closer examination, however, Judge Thapar’s remarks are not surprising for a man with his political background. Thapar’s path to the federal bench was through staunchly Republican, right-wing political channels. Appointed to the bench by George W. Bush in 2007, Thapar, then United States Attorney for the Eastern District of Kentucky, was a favorite of Kentucky senator Mitch McConnell. In fact, McConnell played a key role in recruiting Thapar from his post in Ohio and was a very vocal advocate of his appointment to the federal bench, singing his praises loudly on the Senate floor during the nomination proceeding. But perhaps the most telling indicator of Thapar’s ideological perspective was his association with Attorney General Alberto Gonzales. Thapar served on an advisory committee to Gonzales and came under scrutiny in the "firing of U.S. attorneys because they [allegedly] weren’t active enough in prosecution Democrats."

But Thapar and the Republicans are not alone in their zeal to make examples of American dissenters. The Obama administration appears more intent on "Silencing the Whistle-Blowers" than any White House in history. The prosecutions are often novel or even unprecedented, the type that American judges and juries have historically eyed with substantial suspicion. However, in the current climate of mass media-driven fear, American juries ask no questions. Defendants can be tried and convicted of seemingly whatever prosecutors have the imagination to conjure up.

When the U.S. corporate press reports that Russian President Vladimir Putin has orchestrated convictions and prison sentences of his political opponents, there is always an air of condemnation in the reporting. But there is more to report. It should be said that the ranks of U.S. political prisoners are growing every day and that justice is just as much a political tool in the U.S. as it is in Russia. Are Rice, Walli and Boertje-Obed’s actions that much more serious than Nadezhda Tolokonnikova, Maria Alyokhina and Yekaterina Samutsevich, the Pussy Riot members convicted and jailed for "hooliganism motivated by religious hatred for a protest in Moscow's biggest Orthodox cathedral." In reality, the construct and prosecution of the two cases is strikingly similar.
In the meantime we shall see if the Vatican makes an appearance on Sister Megan’s behalf or just quietly lets her go to a place the church’s pedophiles never seem to go – prison.
For reference, the following is an article written by Fran Quigly on the Oak Ridge trial. It was first published on on May 15, 2013. Fran Quigly does an excellent job of presenting the case and charges. Full disclosure: Fran Quigly is the brother of Attorney Bill Quigly, who is representing Michael R. Walli in the Oak Ridge case.
Fran Quigley | How the US Turned Three Pacifists Into Violent Terrorists
In just ten months, 

In the early morning hours of Saturday, June 28, 2012, long-time peace activists Sr. Megan Rice, 82, Greg Boertje-Obed, 57, and Michael Walli, 63, cut through the chain link fence surrounding the Oak Ridge Y-12 nuclear weapons production facility and trespassed onto the property. Y-12, called the Fort Knox of the nuclear weapons industry, stores hundreds of metric tons of highly enriched uranium and works on every single one of the thousands of nuclear weapons maintained by the U.S.
Describing themselves as the Transform Now Plowshares, the three came as nonviolent protestors to symbolically disarm the weapons. They carried bibles, written statements, peace banners, spray paint, flower, candles, small baby bottles of blood, bread, hammers with biblical verses on them, and wire cutters. Their intent was to follow the words of Isaiah 2:4: “They shall beat their swords into plowshares and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war any more.”
Sr. Megan Rice has been a Catholic sister of the Society of the Holy Child Jesus for over sixty years. Greg Boertje-Obed, a married carpenter who has a college-age daughter, is an Army veteran and lives at a Catholic Worker house in Duluth, Minnesota. Michael Walli, a two-term Vietnam veteran turned peacemaker, lives at the Dorothy Day Catholic Worker house in Washington DC.

In the dark, the three activists cut through a boundary fence which had signs stating “No Trespassing.” The signs indicate that unauthorized entry, a misdemeanor, is punishable by up to 1 year in prison and a $100,000 fine.
No security arrived to confront them.
So the three climbed up a hill through heavy brush, crossed a road, and kept going until they saw the Highly Enriched Uranium Materials Facility (HEUMF) surrounded by three fences, lit up by blazing lights.
Still no security.

So they cut through the three fences, hung up their peace banners, and spray-painted peace slogans on the HEUMF. Still no security arrived. They began praying, and sang songs like “Down by the Riverside” and “Peace Is Flowing Like a River.”

When security finally arrived at about 4:30 a.m., the three surrendered peacefully, and were arrested and jailed.

The next Monday, July 30, Rice, Boertje-Obed, and Walli were arraigned and charged with federal trespassing, a misdemeanor charge which carries a penalty of up to one year in jail. Frank Munger, an award-winning journalist with the Knoxville News Sentinel, was the first to publicly state, “If unarmed protesters dressed in dark clothing could reach the plant’s core during the cover of dark, it raised questions about the plant’s security against more menacing intruders.”

On Wednesday, August 1, all nuclear operations at Y-12 were ordered to be put on hold in order for the plant to focus on security. B&W Y-12 (a joint venture of the Babcock and Wilcox Company and Bechtel National Inc.), the security contractor in charge of Y-12, ordered the “security stand-down,” which was fully supported by the National Nuclear Security Administration.
On Thursday, August 2, Rice, Boertje-Obed, and Walli appeared in court for a pretrial bail hearing. The government asked that all three be detained. One prosecutor called them a potential “danger to the community” and asked that all three be kept in jail until their trial. The U.S. magistrate allowed them to be released.

Sr. Megan Rice walked out of the jail and promptly admitted to gathered media that the three had indeed gone onto the property and taken action in protest of nuclear weapons. “But we had to – we were doing it because we had to reveal the truth of the criminality which is there, that’s our obligation,” Rice said. She also challenged the entire nuclear weapons industry: “We have the power, and the love, and the strength and the courage to end it and transform the whole project, for which has been expended more than 7.2 trillion dollars,” she said. “The truth will heal us and heal our planet, heal our diseases, which result from the disharmony of our planet caused by the worst weapons in the history of mankind, which should not exist. For this we give our lives – for the truth about the terrible existence of these weapons.”

Then the government began increasing the charges against the anti-nuclear peace protestors.

The day after the magistrate ordered the release of Rice, Boertje-Obed, and Walli, a Department of Energy (DOE) agent swore out a federal criminal complaint against the three for damage to federal property, a felony punishable by zero to five years in prison, under 18 U.S. Code Section 1363.
The DOE agent admitted the three carried a letter that stated, “We come to the Y-12 facility because our very humanity rejects the designs of nuclearism, empire and war. Our faith in love and nonviolence encourages us to believe that our activity here is necessary; that we come to invite transformation, undo the past and present work of Y-12; disarm and end any further efforts to increase the Y-12 capacity for an economy and social structure based on war-making and empire-building.”
Now, Rice, Boertje-Obed, and Walli were facing one misdemeanor and one felony and up to six years in prison.

But the government did not stop there. The next week, the charges were enlarged yet again.

On Tuesday, August 7, the U.S. expanded the charges against the peace activists to three counts. The first was the original charge of damage to Y-12 in violation of 18 US Code 1363, punishable by up to five years in prison. The second was an additional damage to federal property in excess of $1000 in violation of 18 US Code 1361, punishable by up to ten years in prison. The third was a trespassing charge, a misdemeanor punishable by up to one year in prison under 42 US Code 2278.

Now they faced up to sixteen years in prison. And the actions of the protestors started to receive national and international attention.
On August 10, 2012, The New York Times ran a picture of Sr. Megan Rice on page one under the headline “The Nun Who Broke into the Nuclear Sanctum.” Citing nuclear experts, the paper of record called their actions “the biggest security breach in the history of the nation’s atomic complex.”
At the end of August 2012, the inspector general of the Department of Energy issued a comprehensive report on the security breakdown at Y-12. Calling the peace activists trespassers, the report indicated that the three were able to get as far as they did because of “multiple system failures on several levels.” The cited failures included cameras broken for six months, ineptitude in responding to alarms, communication problems, and many other failures of the contractors and the federal monitors. The report concluded that “Ironically, the Y-12 breach may have been an important 'wake-up' call regarding the need to correct security issues at the site.”
On October 4, 2012, the defendants announced that they had been advised that, unless they pleaded guilty to at least one felony and the misdemeanor trespass charge, the U.S. would also charge them with sabotage against the U.S. government, a much more serious charge. Over 3000 people signed a petition to U.S. Attorney General Holder asking him not to charge them with sabotage.

But on December 4, 2012, the U.S. filed a new indictment of the protestors. Count one was the promised new charge of sabotage. Defendants were charged with intending to injure, interfere with, or obstruct the national defense of the United States and willful damage of national security premises in violation of 18 US Code 2155, punishable by up to 20 years in prison. Counts two and three were the previous felony property damage charges, with potential prison terms of up to fifteen more years in prison.
Gone entirely was the original misdemeanor charge of trespass. Now Rice, Boertje-Obed, and Walli faced up to thirty-five years in prison.
In a mere five months, government charges transformed them from misdemeanor trespassers to multiple felony saboteurs.

The government also successfully moved to strip the three from presenting any defenses or testimony about the harmful effects of nuclear weapons. The U.S. Attorney’s office filed a document they called “Motion to Preclude Defendants From Introducing Evidence in Support of Certain Justification Defenses.” In this motion, the U.S. asked the court to bar the peace protestors from being allowed to put on any evidence regarding the illegality of nuclear weapons, the immorality of nuclear weapons, international law, or religious, moral, or political beliefs regarding nuclear weapons, the Nuremberg principles developed after WWII, First Amendment protections, necessity, or U.S. policy regarding nuclear weapons.

Rice, Boertje-Obed, and Walli argued against the motion. But, despite powerful testimony by former U.S. Attorney General Ramsey Clark, as well as declarations from an internationally renowned physician and others, the court ruled against the defendants.


Meanwhile, Congress was looking into the security breach, and media attention to the trial grew with a remarkable story in the Washington Post, with CNN coverage, and with AP and Reuters joining in.
The trial was held in Knoxville in early May 2013. The three peace activists were convicted on all counts. Rice, Boertje-Obed, and Walli all took the stand, admitted what they had done, and explained why they did it. The federal manager of Y-12 said the protestors had damaged the credibility of the site in the U.S. and globally and even claimed that their acts had an impact on nuclear deterrence.

As soon as the jury was dismissed, the government moved to jail the protestors because they had been convicted of “crimes of violence.” The government argued that cutting the fences and spray-painting slogans was property damage such as to constitute crimes of violence so the law obligated their incarceration pending sentencing.

The defense pointed out that Rice, Boertje-Obed, and Walli had remained free since their arrest without incident. The government attorneys argued that two of the protestors had violated their bail by going to a Congressional hearing about the Y-12 security problems, an act that had been approved by their parole officers.

The three were immediately jailed. In its decision affirming their incarceration pending their sentencing, the court ruled that both the sabotage and the damage to property convictions were defined by Congress as federal crimes of terrorism. Since the charges carry potential sentences of ten years or more, the court ruled there was a strong presumption in favor of incarceration which was not outweighed by any unique circumstances that warranted their release pending sentencing.

These nonviolent peace activists now sit in jail as federal prisoners, awaiting their sentencing on September 23, 2013.

In ten months, an 82-year-old nun and two pacifists had been successfully transformed by the U.S. government from nonviolent anti-nuclear peace protestors accused of misdemeanor trespassing into felons convicted of violent crimes of terrorism.

Fran Quigley is an Indianapolis attorney working on local and international poverty issues. His column appears in The Indianapolis Star every other Monday.


5. 4-MCHM
One month after a major chemical leak spilled 10,000 gallons of crude MCHM into the Elk River and the water supply for 300,000 West Virginia residents, private testing found the main chemical ingredient in 40 percent of homes sampled.

All of the homes tested had followed the prescribed flushing procedure — several of them multiple times, said Evan Hansen, principal at Downstream Strategies, the environmental consulting firm that carried out the testing.
“I’m not surprised that MCHM is still being detected,” said Hansen. “In talking to people in the area, people are still reporting smells and some people are reporting reactions with their skin, so it seems clear that in some locations, the water isn’t clean yet.”

Last week, several schools in the area were forced to close after staff and students complained of the licorice-like smell characteristic of crude MCHM. One teacher reportedly fainted, and “several students and employees complained of lightheadedness and burning eyes and noses.”

Though West Virginia American Water gave its customers the green light to begin flushing their systems and using the water several weeks ago, none of the state and federal officials testifying at a congressional hearing on Monday would confirm that the water is indeed safe.

Hansen also emphasized that samples were taken from cold water taps and they ran the water for several minutes before taking a sample. Thus, the results report water quality as delivered to homes from the West Virginia American Water distribution system.

Downstream’s testing detected 4-MCHM in the range of .011 to .13 parts per million, well below the threshold recommended by the Centers for Disease Control and Prevention (CDC) of 1 ppm. The 1 ppm threshold has repeatedly been called into question, however, due to the scarce scientific data on crude MCHM and the fact that it has never been tested on humans.

“It’s really important for people to know the water quality at their home,” said Hansen. “The testing that’s being done at fire hydrants is not necessarily representative of what’s going on in people’s homes.”

Over the course of the past month, government officials have not been testing the water in private homes and businesses. After initially brushing off the idea in a press conference last week, Governor Tomblin “later directed his spill-response team to come up with a plan for testing the water in a representative sample of the 100,000 homes and businesses impacted by the leak,” the Charleston Gazette reported.

The sampling carried out by Downstream Strategies and other private companies is only being done in households that can afford it, Hansen points out, making it all the more important that the state take necessary steps to assure the public they are actively and transparently working to ensure the safety of the water.

After a month of unanswered questions, West Virginians are running out of patience. When asked if there was any potential silver lining that could come out of the incident, 21-year-old Charleston resident Kellie Raines said simply, “I would hope so but at this point, I really don’t see it. ”


6 Criminal investigation launched in coal ash spill
RALEIGH, N.C. — Federal authorities have launched a criminal investigation into a massive coal ash spill into a North Carolina river, demanding that Duke Energy and state regulators hand over reams of documents related to the accident that left a waterway polluted with tons of toxic sludge.
The U.S. Attorney's Office in Raleigh issued grand jury subpoenas seeking records from Duke and the North Carolina Department of Environment and Natural Resources. The subpoenas seek emails, memos and reports related to the Feb. 2 spill into the Dan River and the state's oversight of the company's 30 other coal ash dumps.

The Associated Press obtained a copy on Thursday of the subpoena issued to the state.

"An official criminal investigation of a suspected felony is being conducted by an agency of the United States and a federal grand jury," said the subpoena, dated Monday.

The exact crime and precisely who is being targeted for potential prosecution is not spelled out in the document.

A Duke spokesman confirmed the nation's largest electricity provider had also received a subpoena.

Thomas Walker, the U.S. Attorney for the Eastern District of North Carolina, said he could not comment on the subpoenas.

The spill at a Duke Energy plant in Eden spewed enough toxic sludge to fill 73 Olympic-sized pools, turning the river water a milky gray for miles. It was the third-largest coal ash spill in U.S. history. State health officials have advised that people not eat fish from the river and to avoid contact with the water.
Prosecutors ordered the state environmental agency's chief lawyer to testify next month before a grand jury. Agency spokesman Drew Elliot said the state will fully cooperate with the federal investigation.
Duke Energy spokesman Thomas Williams said the company doesn't comment on pending litigation but said officials would cooperate with any investigation.
The subpoenas were issued the day after the AP reported that environmental groups have tried three times in the past year to sue under the Clean Water Act to force Duke to clear out leaky coal ash dumps.
The groups sued after North Carolina regulators failed to act on evidence that conservationists said showed groundwater contamination.

Each time, the state agency blocked the citizen lawsuits by intervening at the last minute to assert its own authority under the act to take enforcement action in state court. After negotiating with the company, the state proposed settlements that environmentalists regarded as highly favorable to the company.

Duke, a company valued at $50 billion, would have paid fines of $99,111 for groundwater pollution leaching from two coal dumps like the one that ruptured last week. The settlement would have required Duke to study how to stop the contamination, but it included no requirement to clean up the dumps near Asheville and Charlotte.

Among the documents targeted by the federal subpoenas are the correspondence between Duke and the state environmental agency related to the proposed deal highlighted in the AP's story. On Monday, lawyers for the state asked a judge to disregard the agency's own proposed settlement in the wake of the spill.

The criminal investigation is a serious new development, said Frank Holleman, senior attorney for the Southern Environmental Law Center, the group that had tried to sue Duke under the Clean Water Act.

After the SELC's third attempt, the state also filed enforcement actions for all of Duke's remaining coal ash sites in North Carolina, which effectively blocks environmentalists from pursuing action against them under the Clean Water Act.

"The state stated under oath in August that Duke was violating the Clean Water laws because of its unpermitted discharges of pollution from the coal ash lagoons into the Dan River. That was six months before this spill," he said.
Yet during that time, the state did nothing to stop Duke from polluting the river, Holleman said.

He said he hopes investigators press regulators on why they didn't take action.
"If anything proves that this is a very serious situation, this subpoena and this grand jury do it," he said. "To date, if this doesn't get Duke's attention and if this doesn't get DENR's attention, what will?"

7. You can drink it - not me... but you can

The federal officials offered assurances about the safety of the water. “You can drink it,” said Dr. Tanja Popovic of the C.D.C. “You can bathe in it.”

But that same day, two schools in Kanawha County, which includes Charleston, sent students home after the chemical’s odor was detected. A teacher at Riverside High School who fainted and a student with burning eyes were taken to the hospital, a spokeswoman for the State Education Department said. On Thursday, three more schools closed.

The Education Department spokeswoman, Liza Cordeiro, said that water tests at the schools conducted by the National Guard did not detect MCHM at a concentration of 10 parts per billion, a threshold 100 times stricter than the level the C.D.C. has determined to be safe for use.

But residents have come to trust their noses over such tests.

“If one smells the odor, people know the chemical is in the water,” said Dr. Rahul Gupta, director of the Kanawha-Charleston Health Department. “It’s difficult for a lot of people to drink it even if they agree with the science behind it.”

Like many others, Dr. Gupta said he was not drinking the water. He has called for long-term studies of the chemical’s effects on public health and said the official response had become “a case study of what not to do in order to manage a crisis well.”

The authorities have sent mixed messages, Dr. Gupta and others said. Estimates of the volume of MCHM that leaked have been steadily revised upward. A second chemical was discovered to have leaked as well. Dr. Popovic of the C.D.C. said the advisory that pregnant women not consume the water was issued to “empower” them. And after the governor said last week that it was not feasible to test the water in individual homes, he reversed himself and said officials would consider doing so.

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“I don’t know that I’ve seen a crisis of confidence as I’ve seen with this water crisis,” Tim Armstead, the minority leader and ranking Republican in the House of Delegates, told reporters.

With the Legislature midway through its annual session in Charleston, water quality issues have dominated discussion. Environmentalists, used to losing most battles in the state, are cautiously optimistic.

“I don’t believe they want to leave this session with the public thinking they haven’t done enough,” said Don Garvin, the chief lobbyist for the West Virginia Environmental Council. His group is pushing for a registry of chemical storage tanks and for inspections by engineers who are independent of industry and the State Environmental Protection Department, which has often been a lax watchdog.

Marybeth Beller, a political scientist at Marshall University in Huntington, W.Va., said, “Typical regulatory legislation in West Virginia looks good for a headline, but when you read through it, there are all these loopholes.” But this time, she said, there is “sustained outrage” because the spill occurred in the state’s largest city during an election year.

“I don’t think we’re going to have too many people running in 2014 in West Virginia who are going to be talking about anti-regulation,” Dr. Beller said.

The authorities have not been able to say how long the odor and taste of the chemical will linger, or to reassure residents about long-term health effects.

“We are one month into the disaster and our water, like the water of thousands of others in our area, still smells of MCHM,” said Jeff Haynes, who lives less than a mile from the Elk River.

Mr. Haynes and his wife do not trust the tap water for drinking, cooking or cleaning. “Showers are very few and far between,” he said. “Meal prep and cleanup is a lot like urban camping and requires a lot of patience.”

His wife has an autoimmune disease, so they try to be especially careful. “This situation has, to say the least, caused more undue stress to our already stressful situation,” Mr. Haynes said.

The federal officials offered assurances about the safety of the water. “You can drink it,” said Dr. Tanja Popovic of the C.D.C. “You can bathe in it.”

But that same day, two schools in Kanawha County, which includes Charleston, sent students home after the chemical’s odor was detected. A teacher at Riverside High School who fainted and a student with burning eyes were taken to the hospital, a spokeswoman for the State Education Department said. On Thursday, three more schools closed.

The Education Department spokeswoman, Liza Cordeiro, said that water tests at the schools conducted by the National Guard did not detect MCHM at a concentration of 10 parts per billion, a threshold 100 times stricter than the level the C.D.C. has determined to be safe for use.

But residents have come to trust their noses over such tests.

“If one smells the odor, people know the chemical is in the water,” said Dr. Rahul Gupta, director of the Kanawha-Charleston Health Department. “It’s difficult for a lot of people to drink it even if they agree with the science behind it.”

Like many others, Dr. Gupta said he was not drinking the water. He has called for long-term studies of the chemical’s effects on public health and said the official response had become “a case study of what not to do in order to manage a crisis well.”

The authorities have sent mixed messages, Dr. Gupta and others said. Estimates of the volume of MCHM that leaked have been steadily revised upward. A second chemical was discovered to have leaked as well. Dr. Popovic of the C.D.C. said the advisory that pregnant women not consume the water was issued to “empower” them. And after the governor said last week that it was not feasible to test the water in individual homes, he reversed himself and said officials would consider doing so.

8. Highly Contaminated Water Still Pouring Into Public Drinking Source on Dan River

Waterkeeper Alliance and Yadkin Riverkeeper have obtained the results from a second round of water sampling on the Dan River in the wake of the third largest coal ash spill in recent U.S. history. Their results confirm that highly-contaminated coal ash seepage is still pouring out of the same Duke Energy ash impoundment where an estimated tens of thousands of tons of raw ash erupted into the river last week. The newly-confirmed leak is located about a third of a mile upstream of the pipe where last week’s major spill occurred.

Laboratory analysis of the discharge (visible on this map at point “D”) confirmed that it contains multiple pollutants that are characteristic of coal ash, including the toxic heavy metals arsenic and chromium. Arsenic concentrations measured .187 mg/L, more than 18 times the human health standard and more than three times the applicable water quality standard.
Meanwhile on Wednesday, Duke Energy began vacuuming ash from last week’s spill out of the river, and pumping it back into the leaking impoundment.
On Thursday, Feb. 6, Waterkeeper Alliance attorney Pete Harrison patrolled the spill site and noticed an unusual discharge flowing down an embankment at the southwest corner of of the plant’s coal ash impoundment.
“This area caught my attention because the rocks were stained bright orange and there was water cascading down, right into the river,” Harrison said.
“When I paddled closer, I could see that the rocks had a thick, slimy coating, an indication of iron-oxidizing bacteria that is often present where seepage is bleeding out of coal ash pits.”

Harrison added, “The discharge concerned me because I’d reviewed the discharge permit for this facility and I knew that there wasn’t supposed to be anything coming out of the ash pond right there.” His team returned to the area four more times since last Thursday to see if anyone had attempted to stop it, but the discharge was still flowing unabated each time they went.
On Feb. 11, officials from the U.S. Environmental Protection Agency (EPA) and North Carolina Department of Environment and Natural Resources (DENR) denied knowledge of any ongoing leaks when questioned about the newly-discovered discharge at a public meeting in Danville, VA. The officials, however, did not ask for additional details about the location or character of the seepage. Waterkeeper Alliance says it would provide its test results to officials working on the cleanup.

Prompted by the threat of enforcement lawsuits by Waterkeeper and several other organizations, DENR filed four lawsuits against Duke Energy in 2013, alleging illegal pollution from leaking ash pits at all 14 of Duke’s coal-fired power plants in North Carolina.

With respect to the Dan River Steam Station, DENR’s Aug. 16, 2013 complaint against Duke alleges that DENR had discovered illegal seeps flowing into the Dan River from “engineered discharges from the toe drains of the ash ponds.” DENR also accused Duke of contaminating groundwater near its ash impoundment with antimony, arsenic, boron, iron, manganese, TDS and sulfate. Six months after filing the suit, DENR has taken no action to force Duke to remedy the problems.

Because DENR’s court papers fail to identify the location of the “engineered discharge” at the Dan River facility, it remains unclear whether the ongoing discharge Waterkeeper identified is the same illegal outfall that DENR identified months ago, or if it is instead another leak in the impoundment that regulators failed to notice.


Water pollution discharges like the one identified by Waterkeeper Alliance are prohibited by the Clean Water Act unless specifically authorized by a discharge permit, and an intentional or even negligent violation of the Act is a federal crime, punishable by imprisonment and/or criminal penalties.
Workers began removing coal ash from the Dan River on Wednesday. Rather than moving the spilled toxic coal ash to a safer, more secure location, Duke simply began to pump the sludge around the failed pipe from the riverbed back into the leaking ash pond from which it came. The confirmation that the same impoundment has been leaking heavily from another area raises questions as to why DENR failed to stop the discharge, or if the agency had overlooked the cascade—even as its staff responded to last week’s spill.
Waterkeeper Alliance Executive Director Marc Yaggi commented, “How can Duke’s cleanup plan possibly work if regulators are turning a blind eye to an ongoing leak like this? While Duke sucks up a small amount of the ash it spilled last week, arsenic and other toxins are still pouring unabated into the Dan River just upstream. If stopping the flow of heavy metals into the Dan River isn’t part of Duke’s cleanup plan, how can the Dan River possibly recover from this travesty?”

Waterkeeper Alliance and other groups have called on the U.S. EPA to take over enforcement efforts from DENR, which has been accused of withholding information about the spill, misinforming the public about contaminant levels in the river, and failing to hold Duke Energy to the same standards as other regulated entities.

Duke Energy is now saying they released 30,000 to 39,000 tons of coal ash and 24 million gallons of polluted coal ash water. Both Duke and DENR have repeatedly been wrong:  (a) they said their coal ash lagoons were safe and stable, not true; (b) they said their stormwater pipe was reinforced concrete, not true; (c) DENR said that the arsenic in the water met human health standards when it was four times the human health levels. Whatever the actual amount, Duke Energy continues to pollute the Dan River due to its reckless way of storing coal ash. Yesterday DHHS advised people not even to touch the water or to eat fish or mussels from the river.

“This administration has allowed Duke Energy to act above the law,” said Yadkin Riverkeeper Dean Naujoks. “As long as we allow Duke to continue storing toxic coal ash in massive, outdated, unlined pits along our drinking water supplies across the state, it’s only a matter of time until the next disaster.”
Donna Lisenby, Global Coal Campaign coordinator for Waterkeeper Alliance, said DENR has also neglected to stop illegal coal ash seepage discharges from Duke’s Riverbend Steam Station. There, toxic seepage flows into Mountain Island Lake about three miles upstream of an intake structure that supplies drinking water to more than 800,000 people in the Charlotte area. “There’s no reason to think that the leaky ash pits at Riverbend aren’t going to fail like Dan River just did. If that one goes, we’re going to have a serious crisis on a scale that would dwarf even the 2008 spill in Kingston.”


9. Keystone XL Document Dump Reveals Obama Unconcerned About Global Warming, State Department Riddled with Oil Lobbyists

The Friends Of the Earth (FOE) and Sierra Club (SC) released on February 12th, the results of their Freedom of Information Act requests from the State Department, concerning the proposed Keystone XL Pipeline. Their document dump shows that while environmental organizations were being kept in the dark, the company that was proposing this Pipeline was regularly meeting with close aides to Secretary of State Hillary Clinton. This occurred while the State Department's Environmental Impact Statement on that project was being prepared. It was being prepared not actually by the State Department, but by corporations that worked for the company that would be owning the Pipeline: TransCanada. President Obama at first declined to approve the pipeline for political reasons that had nothing to do with whether or not the project would significantly increase global warming. That seems not to have mattered to him. All three of the State Department's draft Environmental Impact Statements (EISs) focus on other matters than the proposed Pipeline's impact on global warming. The Sierra Club and Friends of the Earth are therefore now requesting the Inspector General of the State Department to investigate the matter, for apparent irregularities, and even possible violations of federal laws, especially concerning apparent indications that there was corruption in the preparation of these EIS's. The chief lobbyist for the company that would own the Pipeline is Paul Elliott, who had been selected partly because he had been the National Deputy Campaign Manager for Hillary Clinton's Presidential campaign in 2008.

Previously, in 2011, Friends of the Earth had requested the U.S. Department of Justice to investigate Mr. Elliott's lobbying activities with his former boss, but that request was ignored.

There also were many other close aides to Hillary Clinton who were working to expedite a favorable review of the proposed pipeline, such as Kerri-Ann Jones, whom Hillary's husband had first appointed in 1996, to be the Associate Director of the Office of Science and Technology Policy, and whom Hillary chose to be her Assistant Secretary of State. Furthermore, Obama confidant Anita Dunn, and other Obama friends, and a few people with ties to current Secretary of State John Kerry, are also receiving money from TransCanada and working to win approval of the Pipeline.

In this new request by FOI and SC for an investigation, which is directed this time to the Office of Inspector General of the State Department, more evidence is cited of irregularities and suspicious cooperation between the State Department and TransCanada. This new letter focuses especially upon Environmental Resource Management (ERM), the oil industry contracting firm that TransCanada chose to produce the State Department's second draft Environmental Impact Statement on the proposed project (the one issued in March 2013). This letter says: 
"The State Department improperly selected ERM without conducting any independent inquiry into potential conflicts of interest, thus ignoring previous OIG [Office of the Inspector General] recommendations and its own Interim Guidance procedures."

"ERM made false and/or misleading statements to State Department regarding potential bias and conflicts of interest."  "ERM has extensive ties to the oil industry, including membership in multiple oil and gas industry trade organizations that support Keystone XL."

"ERM worked on another TransCanada project during the period covered by their conflict of interest disclosure statement, and has an extensive list of additional clients that stand to benefit from approval of the proposed pipeline, but failed to disclose these relationships."

"The State Department selected ERM based on TransCanada's recommendation." 

"ERM gave false and/or misleading answers [on their application] ... and failed to disclose its business relationships."

"ERM has an extensive list of clients that would directly benefit from the approval of Keystone XL but failed to disclose any of these relationships."

"ERM staff had oil industry experience they failed to disclose."

"ERM failed to disclose its membership in numerous oil & gas trade associations."

"The State Department failed to conduct any independent inquiry into ERM as required."

"The Department of State attempted to conceal ERM's past relationships with TransCanada."


In President Obama's original rejection of the Keystone project, on 18 January 2012 (after Hillary Clinton's first draft EIS, which had been done by another firm chosen by TransCanada), he  said  "I have determined ... that the Keystone XL pipeline project, as presented and analyzed at this time, would not serve the national interest." He did not mention global warming as a reason for rejecting it.

On 7 October 2011, The New York Times had already raised public concerns when they headlined "Pipeline Review Is Faced With Question of Conflict," and reported that Hillary Clinton's first draft EIS on Keystone was prepared by Cardno Entrix, the first firm that had been selected by TransCanada. If President Obama was rejecting the pipeline now because that choice had been untrustworthy, then the subsequent Clinton-State-Department-produced draft EIS, from ERM, was no better. Unfortunately, the third and final one, from Secretary of State John Kerry's State Department, is not much better than Clinton's were.

However, buried on page 64 of "Appendix W" in Secretary Clinton's second draft version was an admission that the prior scientific studies of the impact of the proposed Keystone XL Pipeline had estimated that there would be something on the order of an additional half-billion metric tons of carbon dioxide added to this planet's atmosphere if the pipeline is built and used, as compared to if it's not built and used.

If President Obama really cares about global warming (such as his public rhetoric has indicated), then he can simply trash the reports from his State Department, and reject this project with finality, because it will add considerably to the heating-up of this planet. On the other hand, why would he do such a thing, since he is trying to force the European Union to weaken their anti-global-warming regulations so as to enable them to import Alberta Canada's tar-sands oil, half of which  is owned by the Koch brothers, David and Charles, plus, according to Tim Dickenson in Rolling Stone, Bill Koch, who has his own separate company eagerly awaiting approval of Keystone XL. 

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