Coal Tattoo

Selenium: It’s the new mitigation bill


As I’ve tried to report on what President Obama may or may not do about mountaintop removal, I’ve been thinking a lot about the mitigation bill.

Remember the mitigation bill? Those of you who haven’t been following mountaintop removal since the late 1990s probably don’t. But I sure do . And I would have thought the coal industry and its friends in the West Virginia Legislature would remember it, too.

The reason? I’m wondering if this new bill to give the coal industry yet more time to comply with water quality regulations for toxic selenium pollution might be the new mitigation bill.

By pushing for yet another way around environmental regulations, coal industry lobbyists might just be giving Obama administration officials (and citizen groups as well) a nice place to hang their hats if they’re looking to crack down on large-scale strip mining and valley fills.

Back in 1998, the coal industry pushed for and lawmakers passed (and then-Gov. Cecil Underwood signed), legislation to allow coal companies to bury larger streams with mountaintop removal waste (the rock and dirt that used to be the mountain) without compensating the state with money or with some sort of stream improvement project somewhere else.

But the bill really got the attention of folks at the U.S. Environmental Protection Agency. Truth be told, EPA staffers were already paying some attention to mountaintop removal, and were worried about the growth of valley fills. What the mitigation bill did was give EPA some ammunition, something to hang its legal hat on when trying to push for reducing the size of valley fills or slowing down the steady stream of new mining permits.

u.jpgFor some solid background on this controversy, readers could check out this story from the Gazette’s 1998 Mining the Mountains series.  EPA warned Gov. Underwood about this legislation — that federal officials weren’t sure it complied with the Clean Water Act — but Underwood didn’t listen. Underwood’s own Department of Environmental Protection warned against it,  too. The governor didn’t listen to them, either.

As a result, EPA started challenging mountaintop removal permits, throwing a wrench into the works for mine operators.

Eventually, the state had to repeal the mitigation bill, but not before the Clinton administration EPA had become so involved in the whole mountaintop removal process that it forced other federal  agencies into a legal settlement that greatly slowed down new permits and — even more importantly — required an in-depth study of mountaintop removal’s environmental effects. That study — the Mountaintop Removal EIS — pretty much backed up all of the complaints of coalfield residents and environmental groups about the devastating effects of mountaintop removal.  Of course, by the time it was done, the Bush administration had taken over and reworked things to use the study as an excuse to “streamline” the permitting process.


Well, Obama is president now. And (like his Republican opponent, John McCain), Obama has said he is against mountaintop removal and would like to see it stopped.

And how are coal industry officials in West Virginia responding? They’re busy pushing legislation to give them yet another extension to comply with selenium pollution rules.  They say they need the selenium bill because they don’t know how to meet the water quality limits yet, and they insist there isn’t proof selenium runoff from mines is a problem anyway.

Don Garvin, lead lobbyist for the West Virginia Environmental Council, says coal folks are a bunch of “whiners” for pushing this new selenium bill — to give coal operators until 2012 to meet water quality limits for selenium runoff at their mines.

I don’t know about all that … but pushing this bill right now doesn’t seem like the best strategy for coal. You see, the selenium bill is a change in West Virginia’s water quality standards, and that sort of change requires the approval of — you guessed it, EPA.

You can bet that environmental groups are telling EPA that coal operators certainly can treat selenium and meet water quality limits, if they will just be willing to pay the costs of controlling their pollution. And as for industry’s argument that selenium runoff from mines isn’t a problem, let’s not forget that Dennis Lemly, the nation’s foremost expert on selenium’s effects, on aquatic life said under oath that mining from strip mines is pushing the Mud River to the “brink of a major toxic event.”  Think EPA won’t listen to Lemly? Think again. Remember that EPA has not moved forward with a major weakening of its selenium limits since Lemly and a group of other top scientists issued a scathing critique of the proposal.

lisajackson.jpgSo, you have to wonder. Suppose EPA Administrator Lisa Jackson isn’t willing to reverse Bush administration changes to the Clean Water Act “fill rule,” or that Interior Secretary Ken Salazar doesn’t want to  reverse OSM’s rewritten buffer zone regulation.

Don’t you think that EPA might still find a way to sink its teeth into this selenium bill if it becomes law? Might EPA decide to start working over mountaintop removal permits one by one, as it did a decade ago because of the mitigation bill?

Isn’t pushing for this selenium change right now — while top Obama aides are trying to figure out what to do about mountaintop removal — just asking for trouble? While environmentalists and citizens are in Washington meeting with Obama aides, it seems like coal lobbyists down at the West Virginia Capitol are doing their best to help their industry lose this fight.