Coal Tattoo


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.


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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.


One of the most interesting things about yesterday’s mountaintop removal ruling — the latest industry win at the 4th U.S. Circuit Court of Appeals — was the reaction to it from Alpha Natural Resources. In an e-mail statement, Alpha spokesman Ted Pile had this to say about the decision:

… We were very confident in our position that the Corps of Engineers and our permitting department had worked tirelessly  to develop a permit that complies with the law and thoroughly  protects the environment, while allowing the mine to operate. We were pleased today to have our position affirmed by the 4th Circuit in a well-reasoned, unanimous opinion. 

It’s rewarding to us to see that the courts have multiple times cast aside the unfounded arguments of a small number of special interest groups who wish to stop coal at all costs. Who wins in this ruling are really the communities of Appalachia that are able to preserve high-paying mining jobs and enjoy the economic benefits that come from a properly run, well regulated business.

There are several things in there that are worth unpacking a little bit, as we try to understand what the 4th Circuit’s ruling about Alpha subsidiary Highland Mining’s Highland Reylas Surface Mine means, especially in the wake of two big losses for the coal industry in mountaintop removal cases in the D.C. Circuit and in the 6th Circuit.

First, there’s the way Alpha characterized the citizen groups — the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, the Sierra Club and Coal River Mountain Watch — as “a small number of special interest groups who wish to stop coal at all costs.”  That’s not really too far from the way Massey CEO Don Blankenship would try to minimize and marginalize citizens who are concerned about the impacts of large-scale surface mining on Appalachian forests, streams and communities (see for example here and here).

And here I thought that the Alpha Natural Resources buyout of Massey Energy two years ago was going to bring us a new day in the way coal companies deal with stakeholders … Remember what Alpha-backer Rep. Nick J. Rahall told us about the Alpha-Massey deal:

I think with new ownership now in Southern West Virginia, that we’ll see a reaching out by the companies to try to work with these residents ahead of time, hopefully, in the permitting process, or before the process even starts, to try to work out arrangements with them to ensure that they’re not placed in harm’s way.

If you read Alpha’s 2011 corporate “Sustainability Report,” there’s a great quote in there from CEO Kevin Crutchfield:

We need to be responsive to our communities and stakeholders. Listening is an act of respect.

And the report text itself says:

Our commitment to sustainability stems from our culture of Running Right, Leading Right and Living Right. This culture drives how we operate our business – which includes a commitment to always Running Right that ensures all of our employees make it home safely at the end of every day. It also drives how we approach the people whose lives we touch. Alpha has many stakeholders, and we know our decisions impact them in a variety of ways. To succeed, we need to operate with respect and attention to these stakeholders. We call this Leading Right. And finally, we seek to be the example we want to follow – in every act, every conversation, every moment, both within our company and as members of the communities where we live and work. For us, this is Living Right.

Does trying to minimize and marginalize four of the most active and engaged environmental and citizen groups in the region really constitute “being responsive” to communities and stakeholders?  Does it show much respect for people like Cindy Rank, the mining chair of the West Virginia Highlands Conservancy, who has been focused on trying to reduce mining’s impact on coal communities for far longer than there’s been an Alpha Natural Resources? Is that really “running right”?

More importantly, there’s this other part of the Alpha statement about the “unfounded arguments” about mountaintop removal’s impacts, raised by the citizen groups in this case.

Let’s get some things straight about this. First, the growing body of scientific research certainly doesn’t show that concerns about mountaintop removal’s impact on the environment are “unfounded.”  The science, for example, shows that mountaintop removal is having pervasive and irreversible impacts on the local environment. The science shows a growing concern about why people who live near mountaintop removal mining face greater risks of serious illnesses, including cancer and birth defects. And one of the most recent peer-reviewed papers outlines all of the broad impacts — beyond just water quality issues — from mountaintop removal.

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This just in: The 4th U.S. Circuit Court of Appeals has upheld a lower court ruling that refused to block a permit for Alpha Natural Resources’ Highland Reylas Surface Mine in Logan County, W.Va.

You can read the full opinion here. There’s background on this case available here, here and here. The opinion was written by Judge Paul V. Niemeyer (who also upheld mountaintop removal practices in the 4th Circuit’s Bragg and KFTC rulings), and other members of the panel that heard the case were Judges William B. Traxler Jr. and J. Harvie Wilkinson. All three were originally appointed to the bench by Republican presidents.

The court concluded:

… Contrary to the Environmental Coalition’s contention that the Corps failed to take a hard look at conductivity and stream impairment, the record amply shows that the Corps grappled with the issue extensively, rationally finding that (1) the connection between conductivity and stream impairment was not strong enough to preclude a permit and (2) the compromise measures agreed to by the EPA and Highland Mining would successfully mitigate the potential for adverse effects.

With the inability to demonstrate that the Corps failed to take a “hard look,” the Environmental Coalition’s arguments are reduced to no more than a substantive disagreement with the Corps. But our review is limited, and we may not “use review of an agency’s environmental analysis as a guise for second-guessing substantive decisions committed to the discretion of the agency.”

It looks like — at least for now — that Sen. Joe Manchin, D-W.Va., isn’t having any success in his effort to block the U.S. Environmental Protection Agency from being able to veto Clean Water Act permits like the one for the giant Spruce Mine in Logan County.

We’ve talked before about the reaction from West Virginia political leaders to a federal appeals court ruling that upheld EPA’s authority to issue such a veto. Sen. Manchin not only introduced stand-alone legislation to revoke that authority, but also tried to attach two separate amendments (see here and here) about it to the Senate’s Water Resources Development Act of 2013. Sen. Jay Rockefeller, D-W.Va., was a co-sponsor of one of the two amendments.

But as the bill moves through the Senate, it was announced yesterday on the floor that Sen. Manchin’s proposals are not among those currently scheduled to actually be considered and voted up or down. I asked Sen. Manchin’s office about this, but folks there haven’t responded. Meanwhile, The Hill noted that Sen. Manchin was among those who voted for a failed Republican amendment that would have stopped EPA) from expanding what can be identified as waters protected under the Clean Water Act.

Can we debate the King Coal Highway honestly?

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This morning’s story from West Virginia Public Broadcasting about the massive mountaintop removal mining project proposed as part of the King Coal Highway started off well enough:

Sen. Ron Stollings was admitting that Southern West Virginia is facing “a depleting economy with coal”  and Steve Kominar, executive director of the Mingo County Redevelopment Authority, said what should be obvious — but that few of our state’s leaders like to admit:

We’ve got to have an economy for West Virginia for life after coal. Coal is quickly depleting and if we don’t do that, than what have we left our children and grandchildren.

It’s good to hear from folks at the Mingo County Redevelopment Authority, one of the few local groups that has really tried — especially under the leadership of the late Mike Whitt — to focus on these issues, and to find ways to bring new jobs and a brighter future to our West Virginia coalfields. And the Buffalo Mountain Surface Mine permit that CONSOL Energy proposes as part of the highway project is certainly a timely topic, as the comment period on the latest environmental study is coming to a close.

Unfortunately, this story goes downhill pretty quickly:

Kominar said Consol has been fighting for the permit since 2007 and believes the EPA is doing everything it can to stop or stall the permit’s approval. Both the Army Corps of Engineers and the Federal Highways Administration have signed off on the environmental impact study that details how Consol will maintain run off and address water quality issues, but Kominar said that hasn’t been enough.

“… They say it’s an environmental concern, but their argument holds no credence. There’s no scientific evidence to back up what the EPA is saying except emotional testimony by people to say, well, it’s going to cause this or it’s going to cause that,”  he replied.

“We live here, we breathe this air, we drink this water. We obviously don’t want to destroy ourselves. There’s no evidence to prove that what some of the antis are saying is actually valid,” Kominar said.

“We’ve done hydrological surveys on water systems prior to mining, during mining and after mining, and without fail we found every time that the water quality during mining was a lot better than prior to mining, and was obviously a lot better after mining

Let’s be clear on what public broadcasting reported — without presenting anyone questioning it — There’s no evidence to prove that the kind of mining CONSOL is proposing here damages the environment?

No evidence? It’s hard to know where to start here. But there certainly is a lot of evidence in the peer-reviewed literature that shows large-scale surface mining is linked to pervasive and irreversible impacts on water quality.

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U.S. Senate Republican Leader Mitch McConnell speaks to the Kentucky Coal Association during a luncheon at the Hyatt Regency in Lexington, Ky.,, on Wednesday, June 1, 2011.  (AP Photo/The Lexington Herald-Leader, Pablo Alcala)

The editorial board at the Lexington Herald-Leader certainly didn’t pull any punches yesterday with a piece headlined: More leadership, fewer platitudes: McConnell antics no help to E. Ky. The editorial said:

Sen. Mitch McConnell dropped into Pikeville and Hazard on behalf of his own re-election last week, but also to help realize his dream of becoming Senate majority leader by electing a Republican to replace retiring Democrat Jay Rockefeller of West Virginia.

… Market forces, not the regulators reviled by McConnell, are what’s killing the coal industry in Eastern Kentucky. And the industry is not rebounding any time soon, say experts, because the region’s thin seams are too costly to mine and therefore can’t compete on price.

That a big chunk of people also hold out hope that a coal boom could be ignited in Central Appalachia, if only Congress reined in the Environmental Protection Agency, is not surprising. Human nature craves simplicity over wrestling with complex, scary questions about the future. So the 39 percent who said “no” can be forgiven.

What’s becoming unforgiveable is the eagerness of politicians like McConnell and his co-sponsor, Rep. Shelley Moore Capito, R-W.Va., and a slew of Kentucky Democrats to oversimplify and demagogue the challenges facing the coal-mining regions of Central Appalachia.

The backdrop of the editorial, of course, was Sen. McConnell’s visit to promote the Coal Jobs Protection Act of 2013, legislation the senator’s office describes this way:

The Coal Jobs Protection Act would require the EPA to approve or veto 402 permit applications within 270 days of application. If the EPA doesn’t act by that time, the permit would be automatically approved.

The Coal Jobs Protection Act would give the EPA 90 days after they receive a 404 permit application to begin the approval process for that application. It also gives the president a year to conduct an environmental assessment. Failure to act within that time frame for approval of a 404 permit would mean the application is approved, the permit is issued, and the permit can never be subject to judicial review.

As noted, West Virginia Republican Rep. Shelley Moore Capito sponsored the House version of the legislation. Rep. David McKinley, R-W.Va., is also a co-sponsor.

West Virginia Democratic Sens. Jay Rockefeller and Joe Manchin and Rep. Nick Rahall haven’t co-sponsored the Coal Jobs Protection Act.  But as pointed out before on this blog, they have their own legislation to undermine the Clean Water Act and pander to the coal lobby.

Said the Herald-Leader:

A lot of Eastern Kentuckians, perhaps the majority, are coming to grips with the hard economic truths and are ready to start building something new.

They deserve more from their would-be leaders than deceptions and contrivances like the “war on coal.”

What the people of Eastern Kentucky need are leaders who respect their intelligence and are worthy of them. If anyone spots one, please, let us know.