Here’s a link to the ruling.
Here’s a link to the ruling.
There was an interesting ruling earlier this month out of the 4th U.S. Circuit Court of Appeals in Richmond, in which citizen groups were again blocked in their efforts to litigate against a mountaintop removal mining permit using the growing body of science about mining’s public health effects.
The Jackson Kelley law firm, which represented the mining company in this case, summarized the results this way in a post on its blog:
The United States Court of Appeals for the Fourth Circuit has unanimously upheld the Army Corps of Engineers’ issuance of a Clean Water Act § 404 permit to Raven Crest Contracting, LLC, a subsidiary of White Forest Resources, Inc.
On August 10, 2012, the Corps issued a § 404 “dredge and fill permit” to Raven Crest for its Boone North No. 5 Surface Mine in Boone County, West Virginia. The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Coal River Mountain Watch, and Sierra Club filed suit, claiming that the Corps had violated the Clean Water Act and NEPA by not considering a series of studies allegedly linking mining to adverse health impacts.
Readers may recall that this issue came up before in other cases, one in which U.S. District Judge Robert C. Chambers refused to consider these health studies and another in which the 6th Circuit Court of Appeals sided with the Corps and the coal industry.
A recent study — another in a long line of them — about mountaintop removal’s public health impacts is making the rounds on social media.
My apologies for missing this when it was originally posted online (apparently in February), but here’s the link, and the study is called, “Lung and Bronchus Cancer Deaths in Boone County, WV, Before and After Mountaintop Removal Mining.”
Basically, the study found that:
Lung and bronchus cancer [LBC] death rates have increased significantly since the introduction of MTR in Boone County (all genders, ages, corrected for age). All site cancer death rates have likewise increased significantly over time. There were significantly more deaths from LBC in MTR counties than in non-MTR counties of WV. The Boone County deaths could not be completely accounted for by smoking cigarettes … Occupation had no effect on deaths from LBC for males, however, for females; homemakers had a significantly elevated risk of death than their working counterparts.
The study concludes:
The population in Boone County has decreased over time. Other sources of air pollution and routes of contaminant exposure may have contributed to these increases but if so their nature and source(s) are not known. In the absence of other sources of exposure, the data suggest that the introduction of mountaintop removal mining could have affected mortality in Boone Co., WV.
Coal industry officials and citizen groups are both gearing up for tonight’s start of a series of public hearings on the latest proposal to replace the stream buffer zone rule.
The hearings start this evening in Denver and end on Sept. 17 here in Charleston. The full schedule is here.
This afternoon, the National Mining Association had a phone call with reporters to emphasize the industry’s belief that “the rule is just the latest in a series of costly and unnecessary regulations that will harm mining communities as well as the larger economy, while contributing very little to the environmental protections already ensured by state and federal agencies.”
Meanwhile, the Ohio Valley Environmental Coalition is telling its supporters that the public’s help is needed “to make sure this critical rule overcomes industry opposition.”
Coal operators would have to conduct expanded monitoring and perform additional environmental restoration, but would be freed from the threat that a 32-year-old ban on mining activities within 100 feet of streams might be used to stop them from dumping waste rock and dirt into streams, under a proposed rule unveiled Thursday by the Obama administration.
The Interior Department’s long-awaited proposal acknowledges the growing body of science that links mountaintop removal and related large-scale surface mining to severely damaged water quality, the elimination of rich and diverse forests and increased risks of serious illnesses, including cancer and premature deaths.
However, Interior’s Office of Surface Mining Reclamation and Enforcement backed away from again establishing a “buffer zone” around streams, a requirement that was never really enforced, allowing mining companies to bury hundreds of miles of streams across Appalachia beneath huge waste piles called “valley fills.”
Really, isn’t anyone — outside of the people who wrote it — fooling themselves if they think they already understand all of the implications of the new “Stream Protection Rule” proposal made public this week by the federal Office of Surface Mining Reclamation and Enforcement?
Gosh, I mean, the rule itself is 1,238 pages long and the accompanying Environmental Impact Statement is 1,267 pages long. As I wrote in today’s Gazette story, though, really solid, definitive reactions from industry officials and their political allies were flying out literally as Interior Department officials were making these documents public.
For example, here’s West Virginia’s senior U.S. Senator, Democrat Joe Manchin:
This Administration’s long list of overreaching regulations is absolutely crippling West Virginia families and businesses. This proposed rule would have a devastating impact on our families, jobs and economy, and it fails to strike an appropriate balance between the economy and the environment.
The media isn’t much better. Here’s Hoppy Kercheval over at MetroNews:
Meanwhile, the Interior Department is trying to downplay the economic impact on coal states like West Virginia.
Several years ago a draft of the report leaked, saying the updated stream buffer rule would result in the loss of 7,000 jobs. The outcry was intense, but the Interior Department patched that up by just using a different formula to come up with new numbers… and voila!
Now the agency claims, with no hint of irony, that the rules will preserve “economic opportunities.” Specifically, according to their consultant’s revised calculations, 460 jobs will be lost, but 250 jobs will be created in mine reclamation work.
If we get many more of these Washington “opportunities” we’ll have to turn out the lights.
Here’s the thing, though, if Hoppy had actually read the rule or the EIS, he wouldn’t have used that 460-jobs figure — because it’s not in the report. It was mistakenly given to media during a conference call. I don’t know if Hoppy was on that call or saw the number in another media account, but he sure didn’t look at the actual economic impact numbers in the EIS, or he would have noticed the problem.
To be fair to Hoppy, I doubt any of the reporters who had to cover this story on deadline yesterday finished every single page of both documents. I certainly didn’t. But any reasonable reading of my story will not see the broad, sweeping conclusions he’s already drawing. I specifically noted:
The exact contents of the rule — such as how well it protects streams inside mining permit area “footprints” or toughens the definition of “material damage” to streams that isn’t allowed under the law — were still being digested by all sides Thursday.
From today’s edition of the Energy Information Administration’s Energy Today site:
Coal production from mines with mountaintop removal (MTR) permits has declined since 2008, more than the downward trend in total U.S. coal production. Total U.S. coal production decreased about 15% from 2008 to 2014. Surface production decreased about 21%, and mountaintop removal, one type of surface production, decreased 62% over this period. Lower demand for U.S. coal, primarily used to generate electric power, driven by competitive natural gas prices, increasing use of renewable generation, flat electricity demand, and environmental regulations, has contributed to lower U.S. coal production.
Worth noting, though, is this disclaimer:
By identifying the mines that have MTR permits, it is possible to estimate MTR production using mine production data. However, quantifying the amount of coal produced from mountaintop mining is difficult, because there are a variety of mining techniques that can be performed on a mountaintop in addition to mountaintop removal. These techniques include contour mining, where coal is mined on a hillside, and area mining, where coal is mined from relatively flat terrain. Some of these non-MTR methods may be used in conjunction with or following the use of MTR, making attribution of coal production by mining method less obvious. Consequently, production data in this article refer to total surface production at mines with MTR permits and provide an upper bound of MTR production.
A new interactive map released today shows that mountaintop removal coal mining has been expanding closer to communities in Central Appalachia in recent years, posing increasing threats to human health and the environment even as coal production in the region has declined dramatically. The mapping tool, developed by the nonprofit organization Appalachian Voices, is the first-ever, time-lapse view of the proximity of mountaintop removal mines to communities.
The organization identified 50 Appalachian communities that are most at risk from destructive mining based on the proximity of mining to those communities and the rate at which mining activity has been increasing. Krypton, Ky., Bishop, W.Va., and Roaring Fork, Va. are the top three communities at risk, while the top three counties with the highest number of communities at risk are Pike County, Ky. (seven), Wise County, Va. (six), and Boone County, W.Va. (five).
Read more about it here.
If you happened to miss our story about West Virginia Department of Environmental Protection Secretary Randy Huffman’s comments about the mountaintop removal health studies, you should check it out:
West Virginia’s top environmental regulator says studies that have found residents near mountaintop removal coal-mining operations face increased risks of serious illnesses and premature death deserve to be carefully examined by state and federal officials.
“I think it is something that is worthy of a closer look,” said Randy Huffman, secretary of the state’s Department of Environmental Protection. “It is something that is worthy of consideration. The evidence that is being stated in some of the studies, that needs to be considered.”
Now, let’s not get ahead of ourselves here. Randy Huffman in no way said that DEP is launching some new effort to take a comprehensive look at the growing list of studies linking living near mountaintop removal to greater risk of serious illnesses and premature death. And note the comment from DEP communications director Kelley Gillenwater that “there is currently no conclusive data that would result in changes to the permit application review process.”
Moreover, if what the good folks organizing “The People’s Foot” event on Monday are looking for is an announcement that Randy Huffman has ordered his Division of Mining and Reclamation to stop issuing new mountaintop removal permits effective immediately … well, that’s just not going to happen. Don’t look for Randy to be grabbing a sign and joining the folks protesting outside his agency’s headquarters next week.
But given the political climate in West Virginia right now, it’s probably about right to say that Randy’s comments to me this week are both a big shift and a baby step. It’s a huge thing for someone in a position of authority — someone who works for a very pro-coal governor — to even acknowledge that these studies exist, let alone to go on the record right before a big protest as saying that the science deserves a closer look. It’s a baby step because, given the low bar in West Virginia for acknowledging any science that might in any way reflect negatively on coal, Randy’s comments are a long, long way from any real action on this issue.
So, what happens now?
This was well played by Randy. It’s pretty tough for the protesters to complain that DEP won’t acknowledge the studies when the secretary of the agency just did so. This means that the real action on Monday won’t be at the protest, but in the meeting afterward, when citizen groups will have a chance to make their case to some of Randy’s staff and suggest some path forward.
There’s an interesting order out from the 4th U.S. Circuit Court of Appeals concerning a significant mountaintop removal case. In it, a three-judge panel refuses a request from Alpha Natural Resources that the court consider an immediate appeal of U.S. District Judge Robert C. Chambers’ ruling in part of a case over conductivity pollution from Alpha operations.
Some readers may recall the initial June ruling, which we reported this way:
Citing what he said was “extensive scientific evidence,” a federal judge has ruled for the first time that conductivity pollution from mountaintop removal mining operations is damaging streams in Southern West Virginia.
U.S. District Judge Robert C. Chambers concluded that mines operated by Alpha Natural Resources in Boone and Nicholas counties have “caused or materially contributed to a significant adverse impact” to nearby streams, giving citizen groups a major victory that also supports Obama administration efforts to reduce mountaintop removal impacts.
In a 67-page ruling issued Wednesday, Chambers found that mining discharges had not only altered the chemistry of the streams, but also “unquestionably biologically impaired” them, leaving both the diversity and abundance of aquatic life “profoundly reduced.”
“Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine,” the judge wrote.
“As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes ― functions,‖in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses,” Chambers wrote. “Protecting these uses is the overriding purpose of West Virginia’s water quality standards and the goal of the state’s permit requirements.”
As we noted in that story:
Chambers ruled after a two-day trial in December. He found that the coal operations had caused water quality violations, but has not yet decided what sort of penalty or other injunctive relief he will order.
Alpha lawyers tried to appeal just what Judge Chambers had ruled on so far, but the 4th Circuit refused to hear that appeal. A trial is scheduled to start on Dec. 2 on what sort of penalty or injunctive relief is appropriate.
As we enter the home stretch of this election season, an issue that continues to get little attention from the local media — and no attention at all from major candidates — is one we wrote about in this recent Gazette story:
A new West Virginia University study has found that dust from mountaintop removal coal-mining operations promotes the growth of lung cancer tumors.
The study results “provide new evidence for the carcinogenic potential” of mountaintop removal dust emissions and “support further risk assessment and implementation of exposure control” for that dust, according to the paper, published online Tuesday by the journal Environmental Science and Technology.
“A growing body of evidence links living in proximity to [mountaintop removal] activities to greater risk of serious health consequences, including significantly higher reports of cancer,” the study said. “Our finding strengthens previous epidemiological studies linking [mountaintop removal] to increased incidence of lung cancer, and supports adoption of prevention strategies and exposure control.”
It would be one thing if — as some political leaders continually try to suggest — this was just one isolated study. But it’s not. It’s a growing body of studies that continues to present a compelling case that something is going on. And, of course, while the human health studies are the most troubling, the evidence of environmental destruction from mountaintop removal also continues to grow.
Just this week, there was another important paper out of the University of Kentucky, reporting on how mountaintop removal is reducing the salamander population in Kentucky’s coalfields. This is a follow-up paper to one that produced a similar finding in West Virginia. We wrote about that paper in a Gazette story that summarized the findings of a study many of the overlooked environmental effects of mountaintop removal:
Mountaintop removal is having frequently overlooked impacts on forests, biodiversity, climate and public health, and an updated federal review is needed to more fully examine those issues, according to a new study by government and university scientists.
The study warns that mountaintop removal is not only causing significant changes in the Appalachian topography, but also could be worsening the impacts of global warming.
Authors of the study, published in the peer-reviewed journal BioScience, say that legal and regulatory focus on water quality impacts has led to less research on how mountaintop removal affects forests, soils, biodiversity and the mountains themselves.
“Evaluation of terrestrial impacts is needed to complement the growing literature on aquatic impacts in order for an environmental assessment of the practice to be comprehensive,” states the paper, written by scientists from the U.S. Environmental Protection Agency, the U.S. Geological Survey, Rider University and West Virginia University.
Photo by Mark Schmerling
The news started spreading this weekend, and was confirmed by a short obituary notice in this morning’s paper:
James “Jimmy” Weekley, 74, of Blair, died Aug. 22, 2014.
For those who weren’t aren’t or don’t remember, Mr. Weekley was one of the lead plantiffs in the first major court case to challenge mountaintop removal. He was one of a few very brave citizens who put a lot on the line to try to take a stand for their home. Ironically, his death came just as many others who were involved in that fight were celebrating the release of the film “Moving Mountains,” which focuses on another early mountaintop removal activist, Patricia Bragg, and brings to the screen the story the great reporter Penny Loeb starting telling in a magazine article and then later explained more fully in her book.
UPDATED: In another ironic development, a federal appeals court in Washington has ruled today that the Sierra Club and other groups have legal standing to challenge the removal of the Blair Mountain historic site from the National Register of Historic Places.
One of my most memorable experiences covering the mountaintop removal story over the last 17 years was the day back in July 1998, when Arch Coal lawyer Blair Gardner paid a visit to Mr. Weekley’s home in Pigeonroost Branch, near Blair in Logan County. I’m not sure the story really did the scene justice, but among other things I wrote:
Arch Coal Inc. lawyer Blair Gardner sipped ice water on James Weekley’s front porch swing Monday afternoon. Gardner walked up Pigeonroost Branch and listened to Weekley reminisce about hunting squirrels on the mountainside and fishing with his grandchildren in the stream.
Hummingbirds hovered around feeders hung on Weekley’s porch. Beech, oak and walnut trees covered the surrounding hills. The sounds of the flowing stream hung in the background.
Gardner’s company plans to cut off these mountaintops to reach the coal seams underneath. Leftover rock and dirt would be dumped in a valley fill that will bury 1 miles of Pigeonroost Branch and stretch to within 1,000 feet of Weekley’s home.”This is a beautiful hollow,” Weekley told Gardner. “This is my life here – 58 years of it. I don’t want to see it destroyed.”
Gardner responded, “It is pretty. We’ve been enjoying the birds while we sit here.”
The story continued:
During part of the two-hour visit Monday, Gardner and Dal-Tex General Manager Mark White sat on Weekley’s porch swing while Weekley recited his concerns about the proposed new mine.
Weekley said blasting from the existing mine has already damaged the foundation of his home. Dust from the mine makes it hard for Weekley and his wife to keep their siding clean. Noise from heavy equipment is constant.
“It continues 24 hours a day, scraping and rattling,” Weekley said. “That’s 24 hours a day, seven days a week I have that when I’m sitting here on the porch.”
Gardner and White responded that the Dal-Tex operation complies with current environmental rules. Gardner scribbled notes on a bright yellow legal pad.
“I think that it’s important that we listen to everything you have to say so we’re not going to dispute or argue about anything,” Gardner said. “I’m not disputing that you can feel a blast and I’m not saying I don’t believe you when you say it knocked a picture off your wall. But the record shows we’re not in violation of the regulations.”
Weekley asked how the coal company officials would feel if “a coal company or a chemical company or a logging company came in and destroyed where you lived all your life.”
Gardner responded, “I don’t deny your sincerity, Mr. Weekley. When you say you are attached to your home and your property, you are sincere.”
White said, “I can’t say how I’d feel. I try to empathize with Mr. Weekley, but I can’t say how I’d feel.”
The piece concluded:
Weekley also took Gardner, White and a herd of reporters and camera crews on a walk up Pigeonroost Branch.
At times, the group walked along the creek in areas Arch Coal plans to bury under a valley fill.
“Look around you, sir,” Weekley said. “Look at how beautiful it is.”
Just a few hundred feet up the hollow from Weekley’s house, his 84-year-old mother, Sylvia, sat on the porch of her own home. “This is her homeplace,” Weekley said. “I was born here.”
“When you come in here and do this, all I’m going to have left are memories,” Weekley said. “Money can’t buy my memories. Look at all the species of trees and plants that are going to be destroyed. Why? Why? Why?”
Gardner said, “The reason, Mr. Weekley, is that we have a resource that is valuable and that the market wants. That is coal.”
Photo by Vivan Stockman, Ohio Valley Environmental Coalition, flyover courtesy of Southwings.
Over the weekend, we broke the story in the Sunday Gazette-Mail about something that many insiders have known for a while: The Obama administration put the brakes on some key U.S. Geological Survey research into the public health effects of mountaintop removal coal mining in Southern West Virginia. As our story reported:
Two years ago, Bill Orem and his team of researchers were setting up air monitors in the yards and on the porches of residents in Artie, a small Raleigh County community surrounded by mountaintop removal mines.
Orem, a chemist with the U.S. Geological Survey, was trying to piece together evidence about exactly what caused residents who live near Southern West Virginia’s large-scale mining operations to face increased risks of serious illnesses, including birth defects and cancer, and of premature death.
Since starting their work, Orem’s team has added much to what was already known about the issue: Air quality in communities near mountaintop removal is quite different from air quality in non-mining areas, with more particulate matter and higher concentrations of certain contaminants. Mountaintop removal neighbors have higher rates of certain respiratory diseases, including lung cancer. Also, air pollution particles in mining communities show higher levels of certain elements that indicate the dust is coming from “overburden,” or the rock that mountaintop removal operators blast apart to get at the coal underneath.
“The data is pretty startling for some of these things,” Orem said last week. “To me, it’s compelling enough that a more targeted health study needs to be conducted in these areas.”
However, if that more in-depth study is going to ever be done, it won’t be by Orem and his USGS team. Last year, the Obama administration quietly put the brakes on any new field work to gather data on the potential public-health threats posed by mountaintop removal.
Without warning, the USGS Energy Resources Program in February 2013 pulled its funding for the project. Agency managers diverted Orem and his team to research on the health and environmental effects of unconventional oil and gas extraction, such as hydraulic fracturing in the Marcellus Shale region of Pennsylvania and Northern West Virginia.
For those who still read the paper the old fashioned way, there was quite an interesting contrast between reality and politics on Sunday’s front page. At the top left was my story about the USGS bean counters ending this important research. At the bottom of the page was David Gutman’s story headlined, “As TV ads kick off in W.Va.’s U.S. Senate race, coal is still the theme.” David reported:
West Virginians have seen more ads for the Senate campaigns in neighboring states than the one happening in the Mountain State. That will begin to change Monday, but the primary tenor of the campaign — promises from both candidates to stand up for coal and fight Environmental Protection Agency regulations — will not.
Democratic Secretary of State Natalie Tennant has bought about $120,000 of television time to show an ad — the first from any candidate in the race — in which she, literally, turns the lights off at the White House.
The ad, which the Tennant campaign says will reach 75 percent of West Virginians, opens on a scene of the White House with Tennant asking, “Where do they think their electricity comes from?” The camera pans to power lines leading back to a coal-fired power plant.
“You and I know it’s our hard-working West Virginia coal miners that power America,” Tennant says, as she cuts the power and the lights go out with a boom at the White House. “I’ll make sure President Obama gets the message.”
Big news today out of the U.S. Court of Appeals for the District of Columbia: A three-judge panel has given the federal Environmental Protection Agency another victory in the agency’s efforts to combat water pollution from mountaintop removal coal mining.
You can read the decision here. Basically, the court held that EPA and the Army Corps of Engineers had legal authority to set up an Enhanced Coordination Procedures for reviewing Clean Water Act permits for mining operations, and that the EPA’s conductivity pollution guidance was not a final rule subject — at least not at this point — to legal challenge.
The decision throws out an earlier ruling by U.S. District Judge Reggie B. Walton, who had sided with the National Mining Association and the state of West Virginia, among others who had sued EPA to block the agency’s anti-pollution efforts.
Today’s decision was written by Judge Brett M. Kavanaugh, and the other members of the panel were Thomas B. Griffith and Sri Srinivasan. Kavanaugh and Griffith were appointed by President George W. Bush, and Srinivasan by President Obama.
Readers may also recall that efforts to overturn the EPA’s veto of the Spruce Mine permit, while initially successful, were later tossed by the D.C. Circuit.
EPA press secretary Liz Purchia issued this prepared statement about the ruling:
EPA is pleased that the Court of Appeals agreed with our position in this case. We are committed to consistently using our authority under the Clean Water Act to protect the health and environment of Appalachian communities. The Agency is working with the states, mining companies, other stakeholders and the public to enable environmentally responsible mining projects to move forward.
Citizen groups have also issued a statement, available here.
Gazette photo by Rick Steelhammer
The latest Capitol protest against mountaintop removal is starting to get some attention, as the “Fast for the Mountains” enters day three. There were stories today from West Virginia Public Broadcasting and from the Daily Mail, which explained:
Roland Micklem and a group of supporters are fasting at the state Capitol this week to protest mountaintop removal mining and its negative effect on the environment.
Micklem, 85, isn’t sure he has the strength to see the protest through, but he is adamant in taking a stand and bringing attention to what he said are the evils of invasive mining methods.
But frankly, I think the more interesting development on the mountaintop removal issue is the turnout at last night’s public meeting of citizens who are organizing to oppose the issuance of a new permit near Kanawha State Forest here in Charleston. The Gazette’s Rick Steelhammer reported:
With blasting already underway for a haul road to serve a new mountaintop removal mine near the eastern boundary of Kanawha State Forest, nearly 200 opponents of the project gathered in a Kanawha City church on Tuesday to discuss ways to rescind the permit for the 414-acre operation before mining can begin.
Allowing the development of a mountaintop removal mine adjacent to a 9,300-acre public park within five miles of the State Capitol “is sending the wrong message in a lot of different ways,” said Jim Waggy, a naturalist and member of the Kanawha State Forest Foundation. “Near the back entrance to the forest where mining has been ongoing for several years, it’s an area of noise and desolate views. It’s a completely different experience from what you have at the other end of the forest. …We have the Culture Center for history and the Clay Center for art and music — we should be making Kanawha State Forest a nature center for the area.”
That’s right, nearly 200 people turned out for that meeting. By contrast, a Department of Environmental Protection public hearing on a proposal to re-designate the Kanawha River as a potential source of drinking water drew only a couple of dozen people — that despite the public outcry that followed the contamination of the region’s drinking water by the Freedom Industries chemical spill.
As we reported in today’s Gazette, there’s a significant new study out about mountaintop removal’s impact on fish in Appalachian streams:
Appalachian streams affected by mountaintop removal coal mining can have fewer than half as many fish species and a third as many total fish as other regional waterways, according to a new study published this week by researchers from the U.S. Geological Survey.
Using data from several time periods to track changes in fish diversity and abundance in West Virginia’s Guyandotte River basin, USGS experts observed persistent effects of mountaintop removal associated with water quality degradation and found no evidence that fish communities recovered over time.
Nathanial Hitt, a USGS research fish biologist and lead author of the paper, said:
The Appalachian Mountains are a global hotspot for freshwater fish diversity,. Our paper provides some of the first peer-reviewed research to understand how fish communities respond to mountaintop mining in these biologically diverse headwater streams.
For much of the week, media coverage of environmental issues has rightly been focused on climate change. Story after story has come out about the U.S. Environmental Protection Agency’s proposed carbon pollution rule for power plants, and about reactions to that proposal. Some stories, the like continuing deaths of coal miners both here and in other coalfield communities see also here), get less attention.
Late in the week, though, we were reminded of one of the more significant impacts that our reliance on the coal economy here in West Virginia has on our communities. In a move that went pretty much unnoticed for a day (at least by me), U.S. District Judge Robert C. Chambers issued a blockbuster ruling in a mountaintop removal pollution case against Alpha Natural Resources, concluding the following:
Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine. These West Virginia streams … even like those used by Defendants‘ expert for comparison in this trial, were once thriving aquatic ecosystems. As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes — functions, in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses. Protecting these uses is the overriding purpose of West Virginia‘s water quality standards and the goal of the state‘s permit requirements.
We’ve got a story about the ruling online here, and you can read Judge Chambers’ decision for yourself here. Alpha Natural Resources, whose two mines were found by Judge Chambers to have turned once quality streams into “impaired waterways” where not just stream chemistry has been altered but overall aquatic life abundance has been “profoundly reduced” — had this to say yesterday when asked about the ruling:
The decision here flies in the face of determinations made by all three branches of West Virginia state government-a resolution passed by the state legislature, Department of Environmental Protection policy, and a May 30 Supreme Court decision-all of which point to the fact that conductivity by itself has not been proven to cause loss of sensitive mayflies, and that further evidence is needed beyond a set of bad bug scores to prove violation of state water quality standards. The state Supreme Court spells it out clearly, ruling that there is not adequate agreement in the scientific community that conductivity causes harm to aquatic life. We fully intend to appeal this ruling and expect to see it reversed.
Parts of the ruling (see especially pages 9 through 31 of the decision) are a pretty major take-down of efforts by West Virginia officials to fight federal or citizen efforts to crack down on conductivity pollution from mountaintop removal through state policy guidance, a legislative resolution and actual legislation — let alone last week’s ruling by the state Supreme Court.
In a statement from environmental groups, Vivian Stockman of the Ohio Valley Environmental Coalition said:
As the court recognized in its decision, the West Virginia Department of Environmental Protection is not enforcing its own narrative standards against mountaintop removal coal mines. Unfortunately, that means it’s up to citizens like us to enforce the law and protect our precious streams. Ultimately, protecting streams is not just for aquatic life, it is for us.
Randy Huffman, the DEP secretary, wasn’t pleased with the judge’s ruling. He said that when Alpha appeals it, state officials may seek to file a “friend of the court” brief to get their say:
Basically what happened is Judge Chambers set a water quality standard, which is concerning. There is a process for setting water quality standards, and I think the role of the courts is to see if that process took place. I’m not even arguing the science right now. This is really about the process.
Of course, Judge Chambers explained in his opinion that he was ruling based on the science — evidence the judge said was “overwhelming” — and the judge explained that he was ruling that, given that evidence, the streams at issue “are unquestionably biologically impaired” and “in violation of West Virginia’s narrative water quality standards.” This case is certainly headed for an appeal, and while that goes on, we’ll wait to see if any West Virginia public officials ever step forward to try to address the growing science that shows residents who live near mountaintop removal face increased risks of serious illnesses and premature death.
The word is out this morning that the U.S. Supreme Court has declined to hear Arch Coal’s continued battle to overturn EPA’s veto of the largest mountaintop removal mining permit in West Virginia history. Here’s the list of cases released today by the court. Scroll down to page 3 of the .pdf file under the hearing CERTIORARI DENIED and you’ll see Mingo Logan Coal Co. v. EPA listed there.
There’s plenty of background in previous Coal Tattoo posts, including here, here and here. And let’s not forget that Arch Coal could have avoided all of this litigation by doing more to reduce the environmental impacts of its mining proposal.
In a statement today, Jim Hecker of Public Justice — one of the lawyers who worked in 1998 on the case that initially blocked the Spruce Mine — said this:
The coal industry has falsely painted the Spruce mine veto as an example of EPA overreach and a ‘war on coal,’ when in fact EPA’s authority to veto this permit is obvious from the face of the statute and EPA’s decision is based on clear scientific evidence of serious environmental harm from mining.
Here’s some news from federal court, via an Earthjustice press release issued yesterday evening:
Today a federal court struck down a controversial George W. Bush administration rule that opened up Appalachia’s streams and waterways to toxic dumping from destructive mountaintop removal mining operations.
Numerous national and Appalachian environmental and community groups challenged the midnight rule from 2008, which repealed a longstanding stream protection — a “buffer zone” of protection from mining activities and dumping around waterways. Earthjustice, on behalf of Coal River Mountain Watch, Kentuckians for the Commonwealth, Kentucky Waterways Alliance, Ohio Valley Environmental Coalition, Statewide Organizing For Community Empowerment, Sierra Club, Southern Appalachian Mountain Stewards, Waterkeeper Alliance, and West Virginia Highlands Conservancy, and together with co-counsel at Appalachian Mountain Advocates, the Appalachian Citizens Law Center, and Sierra Club, brought one of the legal challenges to the 2008 Bush rule, arguing that the rule unlawfully weakened protection for vital water resources.
Before the Bush rule eliminated the “stream buffer zone,” this safeguard stood for decades in order to protect American waterways from the type of extreme destruction and obliteration that is now being caused by mountaintop removal mining. Mountaintop removal mining has buried an estimated 2,400 miles of Appalachian streams and polluted many more miles of waterways.
You can read the ruling for yourself here, but keep in mind this part, which limits the on-the-ground impacts of this court decision:
OSM is in the process of developing a new stream protection rule and it would be unnecessarily costly and burdensome for OSM to administratively withdraw the 2008 Rule through notice-and-comment procedures when OSM is already working on a new rule to replace the 2008 Rule.
There’s a new paper just out that provides some helpful new information about the potential public health impacts of mountaintop removal coal mining. Here’s the abstract:
People who live in Appalachian areas where coal mining is prominent have increased health problems compared with people in non-mining areas of Appalachia. Coal mines and related mining activities result in the production of atmospheric particulate matter (PM) that is associated with human health effects. There is a gap in research regarding particle size concentration and distribution to determine respiratory dose around coal mining and non-mining areas. Mass- and number-based size distributions were determined with an Aerodynamic Particle Size and Scanning Mobility Particle Sizer to calculate lung deposition around mining and non-mining areas of West Virginia. Particle number concentrations and deposited lung dose were significantly greater around mining areas compared with non-mining areas, demonstrating elevated risks to humans. The greater dose was correlated with elevated disease rates in the West Virginia mining areas. Number concentrations in the mining areas were comparable to a previously documented urban area where number concentration was associated with respiratory and cardiovascular disease.
The paper, Atmospheric particulate matter size distribution and concentration in West Virginia coal mining and non-mining areas, was published online yesterday by the peer-reviewed Journal of Exposure Science and Environmental Epidemiology, and is available to subscribers here.
Amy Adams, North Carolina campaign coordinator with Appalachian Voices, shows her hand covered with wet coal ash from the Dan River swirling in the background as state and federal environmental officials continued their investigations of a spill of coal ash into the river in Danville, Va., Wednesday, Feb. 5, 2014. Duke Energy estimates that up to 82,000 tons of ash has been released from a break in a 48-inch storm water pipe at the Dan River Power Plant in Eden N.C. on Sunday. (AP Photo/Gerry Broome)
UPDATED: Speaking of spills — here’s our Gazette report on the coal-slurry spill here in West Virginia today.
The Associated Press had a great story out yesterday about the events that preceded the big coal-ash spill on the Dan River in North Carolina:
Over the last year, environmental groups have tried three times to use the federal Clean Water Act to force Duke Energy to clear out leaky coal ash dumps like the one that ruptured last week, spewing enough toxic sludge into a North Carolina river to fill 73 Olympic-sized pools.
Each time, they say, their efforts have been stymied — by the N.C. Department of Environment and Natural Resources.
The state agency has blocked the citizen lawsuits by intervening at the last minute to assert its own authority under the federal act to take enforcement action. After negotiating with Duke, the state proposed settlements where the nation’s largest electricity provider pays modest fines but is under no requirement to actually clean up its coal ash ponds.
The story continues:
Environmental groups and federal regulators had been concerned for years about problems at Duke’s 31 coal-ash waste ponds in North Carolina. Those concerns intensified after a 2008 disaster in Kingston, Tenn., where 5 million cubic yards of ash burst out of a basin, covering 300 acres and devastating a nearby river. The cleanup has cost $1.2 billion.
After Kingston, the Southern Environmental Law Center began examining the issue with conservationist groups and targeted a coal ash lagoon along the Wateree River in South Carolina.
On behalf of the Catawba Riverkeeper Foundation, the legal group filed a lawsuit against South Carolina Electric & Gas for violating state environmental laws. They reached an agreement that requires the utility to empty its lagoons and move the ash to a lined landfill licensed to handle hazardous waste.
That isn’t all:
Next, the environmental groups turned their attention to Duke’s coal ash ponds in North Carolina. The groups had long shared water samples from lakes and rivers near the waste ponds with state regulators that showed contamination, but no fines were issued.
So in January 2013, the SELC filed a notice of intent to sue Duke in federal court over coal ash pollution at the company’s Asheville Steam Generating Plant.
The Clean Water Act allows citizen groups to file lawsuits over environmental violations, but it requires them to give 60-days’ notice to state regulators to take enforcement action before the case can proceed. On the 58th day after the notice, DENR filed notice it would assert its jurisdiction.