Coal Tattoo

Remember mountaintop removal?

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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.

Supreme Court declines to hear Spruce Mine case

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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.


Court throws out Bush ‘buffer zone’ rewrite

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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.

New study details strip-mining air pollution

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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.

Coal ash spills and citizen suits: Sound familiar?

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Coal Ash Spill

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.

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It seems that at least some of the beltway media are expecting some serious news to come out of a hearing this morning before the House Natural Resources Committee, where Republicans are continuing to try to manufacture some major Obama administration scandal out of the Office of Surface Mining Reclamation and Enforcement’s bungling of the Environmental Impact Statement for its rewrite of the stream buffer zone rule.

The National Journal, for example, ran with the ridiculous headline, Explosions Coming Over Mountaintop-Mining Rule and a typical story reducing the matter — and all things related to mountaintop removal and coal mining — to the standard Democrats vs. Republicans story line.

If you missed the notice for the House committee hearing, here’s how the Republican leadership staff described their plan for the event:

For over two years, the Committee has been conducting an investigation into the rewrite of this coal production regulation. This unnecessary rewrite, carried out through the Office of Surface Mining Reclamation and Enforcement (OSM) at the Department of the Interior, proposed to dramatically alter a regulation that took over five years of environmental analysis and careful scientific consideration to complete. The Department’s process in rewriting this regulation has been rushed and unorthodox. After tossing aside the 2008 plan, the Department spent millions of taxpayer dollars and hired new contractors to complete a new environmental impact statement, even though one was already completed for the 2008 rule. Those contractors were dismissed after it was publicly revealed that the Administration’s new proposed regulation would cost 7,000 jobs and cause economic harm in 22 states. The Administration has spent five years and over $9 million taxpayer dollars working on this rewrite, but has failed to even publish a draft rule. In September 2012, the Committee released its own report on this issue entitled, “President Obama’s Covert And Unorthodox Efforts to Impose New Regulation on Coal Mining and Destroy American Jobs.”

For those who have forgotten, this all goes back to the big scoop that Tim Huber wrote for The Associated Press in January 2011, about the potential job losses outlined in a leaked documents from the OSMRE EIS.

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EPA approves industry-backed selenium rule for Ky.

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Gina McCarthy

Here’s some news just released by the Sierra Club:

Today, the Environmental Protection Agency allowed the Kentucky Department of Environmental Protection to change how toxic selenium pollution from mountaintop removal mines is measured for the purposes of determining compliance with the Clean Water Act. Selenium, which causes significant biological damage to fish native to the waters of Appalachia, is a toxic pollutant discharged from valley fills into rivers and streams below mountaintop removal sites. The EPA-backed changes to how Kentucky measures selenium pollution allow the state to rely on an impractical and complicated test of tissue samples from fish rather than the current practice of directly sampling the water discharged below mountaintop removal mines and other selenium sources.  EPA’s capitulation gives a free pass to industry and will allow unacceptably high levels of selenium pollution to continue flow into Kentucky’s waterways.

We’ve discussed this issue before on Coal Tattoo here and here, and you can read the EPA decision letter for yourself here. And of course, selenium remains a major issue in West Virginia, with the passage of industry-backed legislation earlier this year.

Hospital seeks injunction against MTR protesters

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Over in Huntington, W.Va., the folks at the Ohio Valley Environmental Coalition thought it was a little strange that an area hospital would be hosting an event to promote the coal industry, given the growing body of studies that show residents living near the region’s mountaintop removal mining operations are at increased risk of serious illnesses and death. So, OVEC put together a protest, to be held outside St. Mary’s Medical Center, where the Huntington Regional Chamber of Commerce is hosting Robert M. “Mike” Duncan, president and CEO for the American Coalition for Clean Coal Electricity.

But now, as the Huntington paper reports, lawyers for St. Mary’s are seeking a court injunction against the protesters:

A hearing is scheduled for 10:30 a.m. Tuesday, Nov. 12, in Cabell Circuit Judge Paul Farrell’s courtroom regarding a petition for a restraining order filed by St. Mary’s Medical Center against a rally planned outside the St. Mary’s Conference Center Tuesday afternoon.

A spokeswoman for St. Mary’s said hospital is seeking the restraining order mostly to prevent interference with the daily services that go on at the facility, also home to the St. Mary’s School of Nursing.

You can read the hospital’s court filing here.

UPDATE: Judge Farrell has denied the request for a temporary restraining order.



There’s a new study out about mountaintop removal coal mining. It’s in a journal called Ecopsychology and looks at mountaintop removal’s potential impacts on mental and emotional health of the people of our region.  It was published online late last month.

The paper is by Michael Hendryx, formerly of West Virginia University and now with the University of Indiana and WVU’s Kestrel A. Innes-Wimsatt.  It’s called Increased Risk of Depression for People Living in Coal Mining Areas of Central Appalachia. Here’s the abstract:

This study examines the relationship between depression symptoms and living in areas where mountaintop removal coal mining is practiced. Data were analyzed from a survey of 8,591 adults residing in Central Appalachian areas both with and without coal mining. The survey included a validated measure of depression severity. Results showed that diagnosable levels of major depression were present in almost 17% of respondents in mountaintop removal mining areas, compared to 10% of residents in non-mining areas. This disparity was partly attributable to socioeconomic disadvantage, but after statistical control for income, education, and other risks, depression risk for residents in the mountaintop removal area remained significantly elevated (odds ratio = 1.40, 95% confidence interval 1.15–1.71). This study contributes to the empirical evidence in support of the concept of solastalgia and indicates that persons who experience environmental degradation from mountaintop removal coal mining are at elevated risk for depression.

This study comes about a year after another paper by researchers from Radford University. It was in the same journal and was called The Effects of Mountaintop Removal Coal Mining on Mental Health, Well-Being, and Community Health in Central Appalachia. Here’s the abstract

Mountaintop removal coal mining (MTR) is a form of surface mining frequently utilized in Central Appalachia. MTR is exactly what the name suggests; mountaintops are removed to expose coal seams for cheap extraction. The harmful environmental implications of this form of mining are well documented. Research also shows that MTR has detrimental effects on human health and on the functioning of local communities. Although virtually no research has been undertaken on the psychological effects of MTR, reports of people living close to MTR sites along with research on similar environmental problems suggest a high probability of an increased risk of mental health problems for those living near MTR sites. Solastalgia due to drastic environmental changes, eco-anxiety, and stress resulting from the dangerous and noxious aspects of MTR are likely among the most significant contributors to this increased risk of mental health problems. High rates of unemployment and poverty and lower rates of educational attainment persist in Central Appalachia despite significant gains in other areas of Appalachia. These pre-existing socioeconomic problems compound the stressors created by MTR.

As the older paper explains:

Solastalgia is a term coined to describe this placebased distress engendered by unwelcome environmental change. Solastalgia is a psychoterratic mental health issue; that is, it is an earth-related mental health problem stemming from negatively perceived and felt environmental change. Solastalgia is especially distressing for those who directly witness the destruction of their home environment and who feel intimately connected to the place in which they are rooted.

In an area already plagued by socioeconomic inequalities, research on the extent of mental health and community problems is urgently needed to complement growing bodies of research on the health and environmental costs of MTR. Attention should be given to the prevention and amelioration of the psychological costs of MTR for people in Central Appalachia. The well-being of Central Appalachians is not a justifiable sacrifice for cheap energy and high corporate profits.

As he did with the issue of mountaintop removal’s potential impacts on other public health issues in Appalachia, Dr. Hendryx stepped in on the mental health matter to try to begin filling a void with this important research. His new paper explains:

The people of Appalachia have a strong sense of place, and MTR is antithetical to this sense. MTR deforests and destroys mountains within sight and sound of communities where families have lived for generations. Cemeteries have been surrounded or damaged, and entire communities have even been destroyed. In addition, jobs are in decline as machinery replaces labor, as coal reserves dwindle, and as other energy sources such as natural gas outperform coal in the marketplace. Social capital in the region has been depleted as a consequence of depopulation and the struggles between union workers and the coal industry. The prospects for alternative economic development remain largely unexplored and undeveloped as political and corporate interests disregard citizen concerns and cling to old ways. As a result, citizens are left disenfranchised, with little hope for economic advancement, while their surrounding environment, to which they have a profound attachment, is permanently defaced.



There’s a new study out today that presents the first real effort to compare the environmental damage from mountaintop removal mining to the energy benefits from the coal that’s produced. Here’s what’s reported in the press release from Duke University:

To meet current U.S. coal demand through surface mining, an area of the Central Appalachians the size of Washington, D.C., would need to be mined every 81 days.

That’s about 68 square miles — or roughly an area equal to 10 city blocks mined every hour.

A one-year supply of coal would require converting about 310 square miles of the region’s mountains into surface mines, according to a new analysis by scientists at Duke University, Kent State University and the Cary Institute for Ecosystem Studies.

Creating 310 square miles of mountaintop mine would pollute about 2,300 kilometers of Appalachian streams and cause the loss of carbon sequestration by trees and soils equal to the greenhouse gases produced in a year by 33,600 average U.S. single-family homes, the study found.

Here’s the abstract of the study, which appears online today in the peer-reviewed journal PLOS ONE:

While several thousand square kilometers of land area have been subject to surface mining in the Central Appalachians, no reliable estimate exists for how much coal is produced per unit landscape disturbance. We provide this estimate using regional satellite-derived mine delineations and historical county-level coal production data for the period 1985-2005, and further relate the aerial extent of mining disturbance to stream impairment and loss of ecosystem carbon sequestration potential. To meet current US coal demands, an area the size of Washington DC would need to be mined every 81 days. A one-year supply of coal would result in ~2,300 km of stream impairment and a loss of ecosystem carbon sequestration capacity comparable to the global warming potential of >33,000 US homes. For the first time, the environmental impacts of surface coal mining can be directly scaled with coal production rates.

Brian D. Lutz, assistant professor of biogeochemistry at Kent State, who began the analysis as a postdoctoral research associate at Duke’s Nicholas School of the Environment last year, said that while  many studies have documented the severity of surface mining’s impacts on local ecosystems, few have quantified the region-wide extent of the damage and provided the metrics needed to weigh the environmental costs of mountaintop mining against its economic benefits. Lutz said:

This is a critical shortcoming, since even the most severe impacts may be tolerated if we believe they are sufficiently limited in extent.

Co-author William H. Schlesinger, president of the Cary Institute of Ecosystem Studies in Millbrook, N.Y., and   James B. Duke Professor Emeritus of Biogeochemistry and former dean of Duke’s Nicholas School, said the new analysis shows that “the  extent of environmental impacts of surface mining practices is staggering, particularly in terms of the relatively small amount of coal that is produced.” Schlesinger added:

Tremendous environmental capital costs are being incurred for only modest energy gains.

New study looks at coal and cancer

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Luminant Going Bankrupt

There’s a new study out that takes a look at the state of the published research about potential cancer risks from living near coal-mining operations.  It’s called Population Cancer Risks Associated with Coal Mining: A Systematic Review, and was produced by scientists at the Southern Illinois University School of Medicine and the University of Kentucky’s School of Public Health.

Here’s the abstract:


Coal is produced across 25 states and provides 42% of US energy. With production expected to increase 7.6% by 2035, proximate populations remain at risk of exposure to carcinogenic coal products such as silica dust and organic compounds. It is unclear if population exposure is associated with increased risk, or even which cancers have been studied in this regard.


We performed a systematic review of English-language manuscripts published since 1980 to determine if coal mining exposure was associated with increased cancer risk (incidence and mortality).


Of 34 studies identified, 27 studied coal mining as an occupational exposure (coal miner cohort or as a retrospective risk factor) but only seven explored health effects in surrounding populations. Overall, risk assessments were reported for 20 cancer site categories, but their results and frequency varied considerably. Incidence and mortality risk assessments were: negative (no increase) for 12 sites; positive for 1 site; and discordant for 7 sites (e.g. lung, gastric). However, 10 sites had only a single study reporting incidence risk (4 sites had none), and 11 sites had only a single study reporting mortality risk (2 sites had none). The ecological study data were particularly meager, reporting assessments for only 9 sites. While mortality assessments were reported for each, 6 had only a single report and only 2 sites had reported incidence assessments.

And their conclusions:

The reported assessments are too meager, and at times contradictory, to make definitive conclusions about population cancer risk due to coal mining. However, the preponderance of this and other data support many of Hill’s criteria for causation. The paucity of data regarding population exposure and risk, the widespread geographical extent of coal mining activity, and the continuing importance of coal for US energy, warrant further studies of population exposure and risk.

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Alpha faces suit over mining at cemetery

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Photo by Maria Gunnoe, flyover courtesy of Southwings

Vicki Smith over at The Associated Press filed a story about a new lawsuit that challenges the way Alpha Natural Resources is operating its mountaintop removal mine near the Jarrell Family Cemetery in Boone County. She reports:

Six southern West Virginia residents are suing Alpha Natural Resources to stop further damage to a family cemetery they say has become “an island in the sky,” barely accessible and literally surrounded by a massive mountaintop-removal mining operation.

They sued Virginia-based Alpha and its Independence Coal Co. subsidiary in Boone County Circuit Court last week after discovering that activity at the Twilight Surface Mine has come within 30 feet of their ancestors’ graves in Jarrell Cemetery.

In a press release, the Ohio Valley Environmental Coalition explained:

For years, the family members have been attempting to preserve access to the cemetery and protect the graves of their loved ones as a nearby mountaintop removal (MTR) operation grew ever closer. They worked with the West Virginia Department of Environmental Protection (DEP) and coal companies to try to obtain the protections the Surface Mining Control and Reclamation Act (SMCRA) affords. 

The operation, known as the Twilight Surface Mine complex, once owned by Massey Energy and now owned by Alpha Natural Resources, is thought to be one of the largest surface mines east of the Mississippi River. As the Twilight operation grew bigger, the community of Lindytown vanished. Today, Lindytown exists only as overgrown flower gardens lining steps and sidewalks to nowhere along a crumbling road.

Danny Cook, one of the plaintiffs in the case, said:

We’ve spent years begging the companies to not destroy this place that is so important to our family history. Our most recent visit made us realize that we have no other recourse but to sue the company for the damages to the cemetery and access road Our visit was astounding, very emotionally impacting. The 100 foot cemetery boundary for Jarrell Cemetery has been seriously violated.” By law, mining is not to be done within 100 feet of the cemetery’s boundaries.  “In my opinion 100 feet isn’t far enough to ensure damage is prevented.

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Earthjustice urges more letters to OSMRE

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The folks at Earthjustice have issued a response to the loss by Interior Department officials of more than 18,000 public comments on the Bush administration’s 2008 rewrite of the federal stream “buffer zone” rule … basically, the group is urging its supporters to “keep those cards and letters coming.”

vannoppenIn a blog post yesterday, Earthjustice President Trip Van Noppen wrote:

We appreciate the Department of Interior’s apology and explanation for the unfortunate loss of these documents, which were misplaced possibly years ago in an agency move. We want to give reassurance that though the agency may have lost these letters, the Earthjustice supporters who wrote them have not gone anywhere. In fact, they have multiplied and are growing stronger in their commitment to this cause.

Earthjustice is proud to represent some of the most dedicated citizens and community members in the country, and we will not stop until justice and a safe, healthy environment for all is achieved. That’s why, when President Obama took office, more than 20,000 Earthjustice supporters immediately took action again to urge the administration and new leadership at the Office of Surface Mining to bring back these protections and restore the stream buffer zone rule.

Since then, Earthjustice supporters have written more than 277,000 letters to various administration agencies, demanding stronger stream and water protections for communities and an end to mountaintop removal mining. Our partners and client groups have added hundreds of thousands more to that tally. We trust all of these hundreds of thousands of letters are still in place, and we urge the Obama administration to revisit them and listen to the people.

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OSMRE loses 18,000 public comments on stream rule

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Here’s the news that the U.S. Office of Surface Mining Reclamation and Enforcement waited until after the close of business on Friday to put out: The agency lost “two or three boxes” — I guess they’re not sure which — containing more than 18,000 public comments on the Bush administration’s changes to the stream “buffer zone” rule made in 2008.

In this “fact sheet and background information” sent to the media, OSMRE spokesman Chris Holmes explained it all this way:

When OSM discovered and verified the inadvertent loss of some public comments that were part of a mass mailing, it moved quickly to advise both the court and the group that submitted the comments in 2007. OSM retained a sample of the comments and a record of the number of comments received. The sample adequately represented the group’s position, and OSM addressed the comments’ substance in promulgating the 2008 Stream Buffer Zone Rule. The addition of substantially identical comments would not have influenced the rule’s content. However, OSM takes seriously the need to retain all public comments, especially those under a litigation hold, and OSM Director Joe Pizarchik has ordered the immediate development of new controls under which public comments submitted in the future will be safeguarded.

There’s more about all of this here, in a memo from OSMRE Director Joe Pizarchik. The above-noted “fact sheet and background information” identifies these as “substantially identical” comments submitted by the environmental group Earthjustice, which opposed — and then successfully sued to challenge — the Bush administration’s weakening of the “buffer zone” rule. This is apparently what OSMRE says happened:

OSM staff charged with maintaining the rule’s Administrative Record examined the submission and selected a representative sample that reasonably represented the comments. This sample was retained apart from the boxed comments. When the office used to store the comments became overcrowded, the boxes were moved to an adjacent office. More than five years later, OSM directed that the adjacent room be cleaned out. Sometime in 2012, the boxes of duplicate comments were inadvertently discarded.

Keep in mind that House Republicans and the coal industry have been trying their best to depict the Obama administration’s efforts to rewrite the Bush Administration’s rewrite of this rule as part of the “war on coal,” as more evidence of the administration’s hostility to the coal industry and coziness with environmental groups


On the heels of last week’s ruling by U.S. District Judge Robert C. Chambers here in West Virginia, there was a ruling out of federal court in Kentucky on Friday that was less promising for opponents of mountaintop removal coal mining.

In the Kentucky case, U.S. District Judge Thomas B. Russell sided with the U.S. Army Corps of Engineers in a dispute over a permit for Leeco Inc.’s Stacy Branch operation along the Knott-Perry County line in Eastern Kentucky.  Kentuckians for the Commonwealth had raised concerns not just about water quality impacts from the mine, but also objected that the Corps had not really considered the potential impacts on human health, given the growing body of science on that issue.

You can read the court’s decision here, but it’s especially interesting to note this from the end of the decision:

Plaintiffs make a number of compelling and well-documented arguments. Were the Court deciding the Permit issue in the first instance, perhaps its opinion would be different. However, under the highly deferential standard of review afforded to the Corps, the Court finds it did not act unreasonably. Though, as Plaintiffs’ arguments illustrate, reasonable minds could differ on many of the issues decided by the Corps, the Corps adequately analyzed the issues before it before issuing the Permit.


Study pinpoints pollution from mountaintop removal

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The big news here in West Virginia is out of Mingo County, where two local officials — including Circuit Judge Michael Thornsbury have been indicted (see here and here). We’ve talked about Thornsbury before on Coal Tattoo here, here and here. And we’ve also got another story on the Gazette website with more details on an interesting coal-bank-workers comp scheme that’s prompted multiple federal criminal charges.

Meanwhile, there’s a new study out from the folks at Duke University that sheds some new light on the pollution from mountaintop removal coal-mining.  According to the press release:

Three elements commonly found at elevated levels in an Appalachian river polluted by runoff from mountaintop coal mining have distinctive chemistries that can be traced back to their source, according to a Duke University-led study.

The distinctive chemistries of sulfur, carbon and strontium provide scientists with new, more accurate ways to track pollution from mountaintop mining sites and to distinguish it from contamination from other sources.

“Essentially, we found that these elements have unique isotopic fingerprints, meaning we can use them as diagnostic tools to quantify mountaintop mining’s relative contribution to contamination in a watershed,” said Avner Vengosh, professor of geochemistry and water quality at Duke’s Nicholas School of the Environment.

The newly identified tracers will be especially useful in watersheds with more than one source of potential contamination, he said. “Because they allow us to distinguish if contaminants are coming from natural sources, fracking and shale gas development, coal mining, coal ash disposal, or other causes.”

Hendryx leaving WVU, but research will continue

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Word had been circulating for a few weeks, but West Virginia University researcher Michael Hendryx made it official this weekend with a Facebook post:

I have some news that has been difficult to share but no more procrastination. I am leaving WVU for a new job at Indiana University in Bloomington. I start there on August 1. I will be a professor in public health there as I am here.

Importantly, Dr. Hendryx explained:

We are moving because my wife got a great job offer there that was too good to pass up. I imagine there might be some speculation that I was pressured to leave or something, but that is not the case.

He continued:

To those of you who are aware of my work, please know that it will continue. We are collecting air samples in communities impacted by MTR right now. I am working on more community health surveys. MTR needs to stop because it is harmful to human health, and I am going to continue to work on this, as are others who are here in WV and elsewhere.

We’ve written about Dr. Hendryx and his work many times in the Gazette and on this blog (see here, here and here, for example), but I can’t help but remember his story about trying when he first moved to West Virginia to find literature in scientific journals about the potential human health impacts of large-scale strip-mining:

Hendryx is clearly mining a rich vein of health issues in coal country and his work points to alarming impacts of the most destructive form of mining. Part of what makes his work so interesting is that no one had done it before. Mountaintop removal mining has been a controversial issue in Appalachia since at least the mid-1990s and coalfield citizens have long complained of health problems, and possible links to coal and rock dust from blasting and trucking, contaminated streams and groundwater, and toxic chemicals at coal preparation plants. Yet when Hendryx arrived in West Virginia he found almost no scientific health investigation work underway.

“When I did a literature review I couldn’t find anything!” he said. “I was really surprised. There were lots of stories, lots of anecdotes about health problems for people in mining environments but very little, almost no research.”

I asked him why he thought no other researchers had looked into these issues.

“I’ve asked myself that same question,“ he said. “When I first started to talk to some of my colleagues here at the University, um, I think they were skeptical. I think they probably assumed that the health problems here were due to other factors, they were just the result of poverty, or just the result of poor health behaviors like smoking, and didn’t think that the mining contributions were real. I don’t know why. But the more I look, the more I’ve seen and the more concerned I’ve become. And from a public health perspective I really think the coal mining problems we have in the state is one of the biggest health problems we face.”

The work that Dr. Hendryx started — and that he and others are continuing — really changed the nature of the discussion about mountaintop removal — even if political leaders don’t want to hear about it and the coal industry is spending a ton of money trying to challenge his work.

We’ve got a story posted over on the Gazette website with the latest on the King Coal Highway:

Federal regulators have concluded that promoters of the proposed King Coal Highway and an associated mountaintop removal mine have failed to examine construction and mining options that could greatly reduce environmental damage from the project.

In a letter released this morning, the U.S. Environmental Protection Agency said that a study of the highway-mine plan did not fully consider alternatives, including one from a mining engineer EPA hired to draw up less-harmful options.

EPA Regional Administrator Shawn Garvin noted in the letter that CONSOL Energy’s proposed Buffalo Mountain Surface Mine “represents one of the largest surface coal mines ever proposed in Appalachia.” The operation would create a dozen valley fills, bury more than seven miles of streams and temporarily impact more than three more miles of streams.

Garvin said, though, that the latest project study “does not evaluate any project alternatives that may be available to avoid and minimize these impacts” or examine “alternatives that may provide the basis for a project that meets the identified goals and objectives in a cost-effective and technically feasible manner.”

You can read the letter for yourself here, and there’s previous coverage of this issue here, here, here and here.

Citizens, activists and representatives of various coalfield environmental groups are gathering right now, just down the street, outside the Charleston field office of the U.S. Office of Surface Mining Reclamation and Enforcement. They plan to rally there, and then march down to the state Capitol to Gov. Earl Ray Tomblin’s office. The media advisory says the groups are launching what they’re calling the “CARE Campaign,” which stands for “Citizen Action for Real Enforcement,” an effort to hold government agencies accountable “for their failure to respect citizens’ rights.” The media advisory explains:

Citizens have a right to expect protection by their government. West Virginia is failing to protect its citizens from chronic pollution, environmental degradation, human suffering and costs resulting from inadequate regulation of coal extraction by state government.

Decades of citizen efforts have not resulted in sufficient improvements to state government’s enforcement of mining laws, particularly around the devastating consequences for West Virginia communities of unenforced regulations for surface mining.

Today’s events are being held to call attention to this new petition, filed under Part 733 of the federal strip-mining regulations, urging that OSMRE take over regulation of coal mining in West Virginia. The petition alleges that the West Virginia Department of Environmental Protection has “consistently and systematically failed to comply with SMCRA mandates intended to protect the State‘s residents and natural resources.” It notes:

While mining operations in West Virginia have been cited for at least 6,301 SMCRA violations since 2006, many more violations have been ignored and unenforced. West Virginia has failed to take action to address the systematic problems evidenced by these violations. These failures can no longer be tolerated. After thirty years of failure,  it is past time for OSM to assume control of SMCRA permitting, implementation, and enforcement in West Virginia.

The petition says:

The situation could not be more dire nor the stakes higher. In particular, since mountaintop removal mining has become common, West Virginia‘s failure to properly enforce its approved State program has enabled coal operators to use destructive mining practices that have devastated significant areas of its diverse, mountainous, and productive landscape. Forested mountain ridges and valleys have been flattened into moonscapes incapable of supporting any meaningful use or vegetation. Mountain streams have been permanently buried beneath the rubble of what were once mountaintops. Waters have been contaminated for generations to come.

These mining activities have caused communities and downstream areas to be subjected to increased flooding risks. Complete upstream watersheds have been rendered incapable of maintaining proper hydrological function. A huge portion of southern West Virginia has been permanently scarred by inadequately regulated mining and tens of thousands of additional acres are currently under permit or slated for permitting that would cause widespread additional significant harm to communities and their environment. Unless West Virginia‘s current illegal and ineffective implementation of SMCRA ceases and lawful administration and enforcement of SMCRA occurs, West Virginia‘s land, waters and wildlife will be either lost or permanently scarred and many communities will suffer the adverse economic, social and environmental impacts that SMCRA was specifically designed to prevent. This is unacceptable. OSM must act now.


Continue reading…

There was a little bit of action yesterday at the U.S.  Court of Appeals for the District of Columbia regarding the case over the U.S. Environmental Protection Agency’s veto of the permit for the Spruce Mine.

Recall that a three-judge panel of the court upheld EPA’s authority to veto the permit issued by the U.S. Army Corps of Engineers, and that Arch Coal lawyers asked for a rehearing by the entire court. Well, yesterday, the court issued this order that instructed EPA lawyers to respond to the company’s request for a rehearing. (Importantly, the order does not actually grant the company’s request for a rehearing, as some reports initially indicated).

It’s worth noting, as E&E reporter Manuel Quinones did last week, that Arch Coal has hired a big-name lawyer to help with its continued legal fight with EPA over the Spruce Mine:

Arch Coal Inc. has hired former U.S. Solicitor General Paul Clement to work on its case against U.S. EPA’s 2011 permit veto of a sprawling mountaintop-removal mine in West Virginia.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in April unanimously overturned District Judge Amy Berman Jackson’s ruling last year that tossed EPA’s veto of the 2007 Army Corps of Engineers’ permit for the Spruce No. 1 mine.

Hiring Clement is a sign that Arch may be considering seeking Supreme Court review of the case. Arch spokeswoman Kim Link did not provide details about the hire, saying only the company hadn’t filed a petition with the high court.