Attorney Sanders says Public Justice obtained a preliminary injunction against valley fill permit issued by USACE to Fola Coal in West Virginia.

The U.S. Federal Court for the Southern District of West Virginia granted a critical preliminary injunction filed by Public Justice against a valley fill permit issued by the U.S. Army Corps of Engineers for a new Fola Coal mountaintop removal site in West Virginia. The Fola Ike Fork 1 and 2 decision is significant because the court's decision questions the scientific validity of the cornerstone of the Corps' permitting strategy - the theory that coal companies can make up for burying headwater streams with mining waste by creating new streams somewhere else.

Under the Corps' rather novel ecological theory, if the value of the created streams exceeds the value of the buried streams, the environment has a net gain and the mine's environmental impacts are insignificant. To measure stream values, the Corps uses a visual assessment of stream structural indicators to infer their biological functions. As Public Justice’s expert described the methodology, it is like relying solely on a person's height and weight to infer their blood pressure and overall health.

At the preliminary injunction hearing, the Corps employee who authored its stream assessment method testified that he was directed to prepare it in a few weeks' time, had no training in headwater stream ecology, consulted with no stream ecologists, read no scientific papers that supported an inference that the structural indicators he choose were linked to functional stream characteristics, and never measured any stream functions during his single site visit to Appalachia in 2007.

After hearing this testimony, the federal district court found it likely that Public Justice would prevail on its claim that the Corps' decision is illegal. Because all of the Corps' recent permit decisions in West Virginia rely on this method, all of those permits share the same flaw. To read the decision, click here <http://www.publicjustice.net/briefs/FolaPI_Decision_10312008.pdf> .

Attorney Sanders says U.S. Supreme Court to hear appeal over coal case involving millions in political contributions to West Virginia Supreme Court.

In February 2009, the U.S. Supreme Court will hear arguments in a West Virginia case that focuses on the role of big money in buying justice in a state supreme court. In 2004, the A. T. Massey Coal Co. faced a $50-million verdict in a contract dispute with another coal firm. That year, its president and chief executive gave $3 million to candidate Brent Benjamin's campaign for a seat on the state Supreme Court.

Justice Benjamin won the seat; 60% of his funding came from the Massey executive. More specifically, Massey chairman Don Blankenship played a pivotal role in the political race by personally spending $3 million on behalf of an organization that directly or indirectly benefited the election of Justice Benjamin.

Shortly afterward, the West Virginia Supreme Court agreed to hear Massey's appeal in the contract dispute. Despite pleas that he recuse himself from ruling on the case, Justice Brent Benjamin cast the deciding vote in a 3-2 ruling that overturned the $50 million verdict against Massey. The shocked companies appealed the case to the U.S. Supreme Court. The highest federal court will decide whether Justice Brent Benjamin's refusal to recuse himself from the case violated the losing company’s due process rights.

The Appellants claim that it violates the Constitution's guarantee of due process of law to permit a judge to accept a huge million dollar contribution from a donor and then rule on his case. Caperton vs. A. T. Massey Coal Co. will be heard in February 2009.

Attorney Sanders says public comment period on perchlorate extended because EPA's model was potentially biased towards deregulation of contaminant.

A while back, we wrote about U.S. EPA’s extension of the public comment period on the agency’ preliminary decision that it would not regulate perchlorate, an oxidizer in rocket fuel under the Safe Drinking Water Act. The decision caught many members of the public and environmental groups completely off-guard and raised a nationwide uproar. As a result, instead of finalizing its preliminary decision, the agency extended the public comment period on whether EPA should regulate perchlorate under the Safe Drinking Water Act.

Now, the basis for the extension of time is slowly coming to light. U.S. EPA scientific advisers warned managers at EPA Headquarters in Washington that the agency should delay final action on its decision because the computer model underlying the decision may have flaws. EPA relied heavily on a computer model created by the Chemical Industry Institute of Toxicology, which has yet to be fully checked by other scientists. That means, the mathematical model was not peer reviewed by other qualified scientists to make sure the results were fair and unbiased.

As matters stand now, EPA’s preliminary decision may be biased towards letting the makers and users of perchlorate off the hook for polluting drinking water supplies in 35 different states. Because of the wealth of scientific information on the toxicity of perchlorate on humans, not regulating perchlorate in drinking water seems illogical at best and highly political at worst. Perchlorate accumulates in the body from consuming water, milk, lettuce and other common products and has been linked in scientific studies to thyroid problems in pregnant women, newborns and infants.

In a letter last week, the heads of EPA's Science Advisory Board and its drinking water committee urged EPA Administrator Stephen L. Johnson to extend the public comment period on its preliminary determination to not regulate perchlorate. That decision is set to become final next month. Amazingly, the decision not to regulate perchlorate comes at the end of the wretchedly failed leadership of Administrator Johnson and the Bush-Chaney Administration.

"Given perchlorate's wide occurrence and well-documented toxicity to humans, the [Science Advisory Board] strongly believes that there must be a compelling scientific basis to support a scientific determination not to regulate perchlorate as a national drinking water contaminant," Advisory Board Chairwoman Deborah L. Swackhamer and Joan B. Rose, chairwoman of the board's drinking water committee, wrote November 5 to Administrator Johnson.

Here is yet another mess being dumped onto Barrack Obama's Administration from the Bush folks. Look for the agency to become unaminous over regulation of perchlorate as a contaminant in the coming year.

Attorney Sanders says call before you dig to avoid costly repairs and lawsuit.

Power, water, gas and many other lines crisscross most urban areas. Even rural areas feature heavy concentrations of underground lines. To avoid hitting a line, call before you dig. The Kentucky Dig Law (KRS 367.4901 to KRS 367.4917) was passed in 1994. As a result, Kentucky state law requires all persons excavating to call at least two full business days before digging, and no more than 10 business days prior to digging.

Kentucky 811 is open 7 days a week, 24 hours a day to process locate requests or address questions regarding a locate request. The toll free number is 811 or 800-752-6007. Kentucky 811 is a free statewide computer operated communication system, designed to save time, money, costly lawsuits, and dramatically reduce accidental dig-ins. Kentucky 811 does not factor state and federal holidays in the 2 Business Day Notice required by law. When a Locate Request is submitted and a holiday falls sometime in the 2 business day notice then the date the holiday is observed will not be considered in the 2 business day notice.

To view the current year’s holiday list that affects the 2 business day notice, visit Kentucky 811’s website at http://www.kentucky811.org/.

Attorney Sanders says falling oil prices kill another corn-based ethanol plant in Western Kentucky.

A planned corn-based ethanol plant in Henderson has been cancelled, according to the Henderson Gleaner. The plant, owned by Kentucky Five Star Energy, was seeking $85 million in funding. According to the newspaper story, Five Star Energy had purchased a site, but was unable to come to agreement on steam purchases from a nearby power plant owned by Big Rivers Utilities. That excuse is nonsense. Falling oil prices are the major factor stopping the ethanol plant.

Attorney Sanders says University of Pittsburgh researchers find link between low levels of arsenic in drinking water and heart disease.

Arsenic is a naturally occurring mineral primarily found in groundwater. Drinking water with high levels of arsenic over many years has been linked to increased risks for lung, bladder and skin cancers, as well as heart disease, diabetes and neurological damage. New research on mice finds that arsenic in drinking water may also cause heart disease even at levels that are currently believed to be safe.

When mice are exposed to arsenic at federally-approved levels for drinking water, pores in liver blood vessels close, potentially leading to cardiovascular disease, say University of Pittsburgh researchers in the Journal of Clinical Investigation. The study, while preliminary, also reveals how an enzyme linked to hypertension and atherosclerosis alters cells, and may call into question current U.S. EPA standards for drinking water that are based solely on risks for cancer.

The researchers looked at specialized cells in the liver called sinusoidal endothelial cells, which are tasked with removing wastes from blood and enabling nutrients to regulate metabolism. After exposing mice to 10 to 100 parts per billion (ppb) of arsenic over a two-week period, the cells were less able to remove damaged proteins from the blood and lost their characteristic pores or "windows," severely compromising the cells' ability to effectively exchange nutrients and waste. Normally, mice are usually less sensitive to the effects of arsenic than people. That does not bode well for tens of millions of Americans drinking water with concentrations of arsenic that the EPA currently views as safe.

Attorney Sanders says NKU to hold public discussion of presidential politics and challenges ahead for President Barack Obama.

The Northern Kentucky Forum will host its second “public square” event on Wednesday, Nov. 12, at 6:45 p.m. at Otto M. Budig Theater at Northern Kentucky University. The focus will be on the presidential election and the challenges ahead for the next president. The Forum’s public square events are free gatherings, open to community at large and to NKU faculty, staff and students. The events are designed to engage and inform the audience, often with innovative formats.

The event will begin with reflections from journalist Steve Hurst, a widely traveled Associated Press foreign correspondent who returned to the States last spring. Now based in Washington, Hurst has been providing extensive coverage of the 2008 campaign for AP’s international customers and readers.

After his opening reflections, Hurst will take questions from the audience in an open dialogue format. During the second portion for the evening, Hurst will join a panel that will include two elected officials (one from each party) and an economist. The panelists joining Hurst will be Kentucky State Auditor Crit Luallen; Kentucky Secretary of State Trey Grayson; Dr. Martin Giesbrecht, NKU professor emeritus of economics. The panel will be moderated by Terry Grundy, director of community impact at United Way of Greater Cincinnati and an adjunct professor at the University of Cincinnati’s School of Planning.