Coal Tattoo

Hendryx leaving WVU, but research will continue

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?

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.

Groups seek EPA rule to limit mining pollution

This just in from Earthjustice:

Yesterday afternoon, a coalition of Appalachian and national groups pressed the Environmental Protection Agency for stronger protection for their waters from the most extreme form of coal mining, mountaintop removal …

In a formal petition for rulemaking, 17 Appalachian local, regional, and national groups are petitioning the EPA to set a numeric water quality standard under the Clean Water Act to protect streams in Kentucky, West Virginia, Virginia, Tennessee, Ohio, and Pennsylvania from pollution caused by mountaintop removal mining. This petition is backed by robust scientific studies that demonstrate that the dumping of mountaintop removal mining waste leads to harmful levels of conductivity – the ability of a waterway to conduct an electric current. Elevated conductivity is toxic to aquatic life, and studies show it is having an extreme ecological effect on Appalachian waters and streams.

The following groups joined the petition: Earthjustice, West Virginia Highlands Conservancy, Kentucky Waterways Alliance, Coal River Mountain Watch, Ohio Valley Environmental Coalition, Appalachian Voices, Statewide Organizing for Community eMpowerment, Southern Appalachian Mountain Stewards, Kentuckians For The Commonwealth, Tennessee Clean Water Network, Defenders of Wildlife, Sierra Club, Appalachian Mountain Advocates, Public Justice, Natural Resources Defense Council, National Wildlife Federation, West Virginia Rivers Coalition.

You can read the rulemaking petition here.

CRS: Nobody happy with EPA on MTR

There’s a new report out from the Congressional Research Service called Mountaintop Mining: Background on Current Controversies. As many of you know, the CRS works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation.

Given all we hear from political leaders and coal operators about how tough the EPA is on mountaintop removal and the coal industry in general, the CRS report offers an interesting reminder of the real state of these issues:

Viewed broadly, the Administration’s combined actions on mountaintop mining displease both industry and environmental advocates. The additional scrutiny of permits, more stringent requirements, and EPA’s veto of a previously authorized project have angered the coal industry and many of its supporters. At the same time, while environmental groups support the veto and EPA’s steps to restrict the practice, many favor tougher requirements or even total rejection of mountaintop mining in Appalachia.

Joe Solomon and David Baghdadi locked together disrupting the opening plenary of the ARIES symposium. Police cleared the room. Photo via RAMPS.

It’s been more than a week since the end of the Charleston symposium that brought together researchers from the coal industry-funded ARIES project for the release of some initial studies about coal mining’s impacts on the economy, environment and public health here in Appalachia.

Readers may recall that I did a lengthy story that tried to describe the history of ARIES and outlined some of the potential conflicts of interest and questions that exist about this sort of industry-backed program. Among other things, that story reported:

Michael Karmis, director of Virginia Tech’s Center for Coal and Energy, where ARIES is headquartered, describes the project as an effort to generate good science by the best minds at universities around the region.

“We want to have a scientific debate, not a political debate,” Karmis said during an August 2012 interview.

And indeed, there was some pretty interesting stuff release at the ARIES symposium. You can read the entire proceedings volume online here if you want. I tried to cover some of the more interesting presentations in several stories (see here and here), and I also did a longer story about the attacks some ARIES researchers are mounting on previous papers that show residents living near mountaintop removal coal-mining face greater risk of serious health problems and premature death.

And it was certainly interesting to hear about how legislation pending on Congress would allow the coal industry to fund research about mountaintop removal’s impacts, but do it through a fee to cover the costs of a government examination of the issue — rather than through various universities in the region where some researchers may or may not have existing ties to coal companies with an interest in the study outcomes.

One of the most important issues here is exactly who gets to sit at the table. Who decides which questions scientists should be looking it — who gets to even suggest those questions in the first place?

That was the whole problem with the way ARIES organizers set up their symposium. To start of the event, they put together two plenary sessions that were supposed to set the stage or describe the context for the rest of the presentations. These plenary sessions weren’t made up of scientists — the speakers were pro-mining state regulators and industry officials. There was no one at the table from any citizen or environmental group who might question the underlying message from other speakers about mining already being over-regulated and EPA being an out-of-control agency. Without an alternative view, that was left hanging there as the backdrop for the whole event.

No one from ARIES has made any sort of reasonable or rational explanation for why they didn’t just invite someone from Coal River Mountain Watch, the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, or the Sierra Club to join the plenary panels. Almost everyone I’ve talked to who attended the event said privately it would have made sense to be more inclusive.

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In this aerial photo, part of the work already done at the site of the Spruce Mine can be seen alongside Pigeonroost Hollow, at right. Photo by Vivian Stockman, flyover courtesy of Southwings.

It’s certainly not surprising that the Daily Mail and Hoppy Kercheval both pounced earlier this week on the D.C. Circuit Court of Appeals decision that the U.S. Environmental Protection Agency in fact does have legal authority to veto a mountaintop removal permit issued by the federal Army Corps of Engineers.

Both of these coal industry defenders managed to do so without mentioning that the decision came from a panel of three judges appointed by some of their favorite presidents. Never much for nuance, the Daily Mail’s editorial writers declared that the ruling “will end coal mining.” Hoppy went off onto some thing about M.C. Escher which had the feel of a college freshman reaching for a smart analogy.

And it was certainly not surprising that West Virginia political leaders reacted the way they did to this ruling.  We ran through some of the problems with their narrative the other day. But it’s worth mentioning this all again, now that Sens. Jay Rockefeller and Joe Manchin, both D-W.Va., have reintroduced something they have decided to again call the “EPA Fair Play Act.” The bill’s official purpose is this:

To amend the Federal Water Pollution Control Act to clarify and confirm the authority of the Environmental Protection Agency to deny or restrict the use of defined areas as disposal sites for the discharge of dredged or fill material.

To clarify and confirm EPA’s authority. Not so much.  What the bill actually does is strip EPA of authority that three Republican judges have said is clearly in the current Clean Water Act passed by Congress 40 years ago. The text of the original version of the legislation is online here. This is how it changes the key section of the Clean Water Act, Section 404(c):

The Administrator   Until such time as a permit under this section has been issued by the Secretary, the Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.

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Gazette photo by Lawrence Pierce

You’ve got to give Roger Calhoun some credit. When a dozen or so citizens showed up outside the U.S. Office of Surface Mining Reclamation and Enforcement’s Charleston field office, the local director didn’t hide inside. He came out — twice — to talk to the folks and answer questions from the media. He invited us in off the street.

This wasn’t the first time I’ve seen Roger do this. He did it before two years ago, when citizens showed up to press him for action on their concerns regarding the Brushy Fork coal-slurry impoundment in Raleigh County.

And if you look closely in the photograph, you’ll see some rolled-up papers in Roger’s hand. Those are copies of the prepared statement from the Interior Department, OSM’s parent agency. That’s what the folks in Washington wanted him to read to the people and the press. Roger dutifully handed out copies. But he didn’t read it, and he certainly didn’t stick to the script the beltway handlers provided.

Now if you ask Roger (a longtime OSM manager who has run the Charleston office through administrations of both political parties), he’ll say some nice things about working for his current bosses.

For example, folks in Washington were all buzzing earlier this week with rumors that The Washington Post was going to break the story of this leaked OSM slurry dam study. And in fact the Post did get the story online first, though someone there didn’t know the difference between coal slurry dams and power plant ash impoundments. But Roger said he hadn’t been pressed to find out where the leak came from, unlike what happened a few years back when an early draft of an OSM report on mountaintop removal enforcement had been slipped to the media:

They were more concerned about finding out who leaked something. This time, I’m getting positive feedback from the administration for trying to do something to solve a problem.

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More of the same: Politicians and the Spruce Mine

Well, it wasn’t especially surprising when the comments started to roll in yesterday following the major legal victory for the U.S. Environmental Protection Agency.  A federal appeals court had found that EPA has clear authority to veto Clean Water Act dredge-and-fill permits — like the one for the Spruce No. 1 Mine in Logan County. Given a huge win like that for EPA what are the folks who peddle the “war on coal” stuff going to say?

We’ve got the full story of the ruling here, and you can read the 15-page decision for yourself here. Today, let’s step back and look at the way our region’s political leaders responded to this ruling.

First out of the box (or at least into my email inbox) was Rep. Nick J. Rahall:

Today’s decision would open the floodgates to disrupting coal mining in West Virginia and elsewhere by granting the EPA unprecedented and seemingly limitless authority over Clean Water Act 404 permits. The court, in this decision, gives license to the EPA to retroactively veto any Clean Water Act 404 permit ‘whenever’ the Administrator deems necessary, rendering all such permits for any range of industrial or construction activities throughout the country completely meaningless.

This decision undercuts the Clean Water Act authority vested by Congress in the Corps of Engineers and would upend the traditional balance that has existed between the states and the federal government in the permitting process. Today’s ruling makes clear that Congressional action will be needed. I will soon be reintroducing the Clean Water Cooperative Federalism Act, legislation the House approved last year to prevent the EPA from using the guise of clean water as a means to disrupt coal mining as they have now done with respect to the Spruce Mine in Logan County, West Virginia.

Let’s look at the key part of that again:

The court, in this decision, gives license to the EPA to retroactively veto any Clean Water Act 404 permit ‘whenever’ the Administrator deems necessary, rendering all such permits for any range of industrial or construction activities throughout the country completely meaningless.

Seriously? Let’s remember that the Spruce Mine is in Rep. Rahall’s district. More importantly, let’s remember that Rep. Rahall, in his first year in Congress, served on the conference committee that worked out the final version of the 1977 federal strip-mining law. He’s supposed to know something about this stuff, right? So why would Rep. Rahall so blatantly misrepresent what the U.S Circuit Court of Appeals for the District of Columbia did in this case?

The court absolutely did not say that EPA can retroactively veto any Clean Water Act 404 permit ‘whenever the Administrator deems necessary.” The words “deems necessary” don’t appear anywhere in the court’s ruling. What the court did say was this (see the bottom of page 3, continuing to page 4):

Subsection 404(c) authorizes the Administrator, after consultation with the Corps, to veto the Corps’ disposal site specification — that is, the Administrator “is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and … to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site” — “whenever he determines” the discharge will have an “unacceptable adverse effect” on identified environmental resources.

That part about EPA having authority to veto permits — even those that have already been issued — whenever agency officials determine the discharge will have an “unacceptable adverse effect” is particularly important.  Here’s the full section from the law:

The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.

That’s exactly the determination that the EPA made in this case. You can read the EPA’s proposed determination, the regional administrator’s recommended decision and the EPA’s final determination to understand the full scope of EPA’s reasoning. But the bottom line isn’t really all that complicated. There’s a growing body of evidence that shows mountaintop removal mining of the sort proposed here is very harmful to water quality and aquatic life. After the Spruce Mine permit was approved, this evidence grew even stronger, and the Obama administration decided — contrary to the previous administration — that the likely impacts of this giant mine were not acceptable. Here’s what Pete Silva, then EPA’s assistant administrator for water, said about the reasons for EPA’s permit veto:

The proposed Spruce No. 1 Mine would use destructive and unsustainable mining practices that jeopardize the health of Appalachian communities and clean water on which they depend. Coal and coal mining are part of our nation’s energy future and EPA has worked with companies to design mining operations that adequately protect our nation’s waters. We have a responsibility under the law to protect water quality and safeguard the people who rely on clean water.

Continue reading…

There’s a significant ruling out this morning from a federal appeals court in Kentucky, involving a challenge to the streamlined permitting process for mountaintop removal used by the federal Army Corps of Engineers.  The ruling comes from the 6th U.S. Circuit Court of Appeals, and you can read it online here.

The three-judge panel threw out the Corps’ use of Nationwide Permit 21, calling the agency’s actions “arbitrary and capricious,” and saying the Corps did not follow the applicable Clean Water Act and National Environmental Policy Act regulations, which require it to document its assessment of environmental impacts and examine past impacts before issuing new permits. The ruling said:

Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given.

The case focuses on the way the Corps of Engineers analyzed cumulative impacts of mining and considered the possible benefits of mitigation when it determined that a less-detailed Environmental Assessment was adequate to support issuance of NWP 21, instead of performing a much more elaborate Environmental Impact Statement. Remember that the law, especially NEPA, requires agencies to take a “hard look at environmental consequences” of their actions.

But in this instance, the 6th Circuit found, the Corps of Engineers “omitted the present effects of past actions” when it purported to analyze the cumulative impacts of its mining permit approvals.  The court said:

An environmental assessment that omits consideration of past impacts, followed by a conclusory suggestion that past impacts did not matter, cannot be in conformance. This is especially true where the reviewing agency reauthorizes a nationwide permit involving the same type of mining activities that cause the same type of environmental impacts.

While taking advantage of the more lenient environmental-assessment method (instead of the intensive environmental-impact statement method), the Corps short-circuited the “cumulative impact” analysis by confining its review to an estimate of future impacts. The Corps reasonably relied on data regarding past impacts to project future impacts, but it failed to combine the two to gauge the cumulative impact of reauthorizing permit 21.

In addition, the court found that the Corps of Engineers provided no proof that mining company “mitigation” activities are sufficient to offset mining damage, and reduce any cumulative impacts to being minimal:

We acknowledge that the Corps may rely on post-issuance mitigation procedures to minimize environmental impacts, but in making a minimal-cumulative-impact finding, it must, at a minimum, provide some documented information supporting that finding.

The 6th Circuit ruling was written by Judge Deborah Cook, who was appointed by President George W. Bush. Other panel members were Judge Eugene Siler, who was originally appointed to the federal bench by President Ford, and District Judge George Steeh, an appointee of President Clinton. The ruling overturns a decision by U.S. District Judge David Bunning.

The ruling notes that the nationwide permits at issue (the 2007 version of the NWPs) expired on March 18, 2012, but that the Corps extended those permits through March 18, 2013, for projects started before the 2012 expiration date. Additionally, in order to “provide an equitable an less burdensome transition,” and avoid “significant hardship” for coal operators, the Corps granted a five-year “accommodation” until 2017 to activities authorized under the permits. The

The Corps estimates that approximately 70 surface coal-mining activities authorized under permit 21 qualify for this five-year reauthorization. The 6th Circuit also issued a 60-day stay of its ruling “to allow the parties and the district court an opportunity to assess the ramifications of this ruling on existing projects and potential remedies.”

Photo by Vivian Stockman, flyover courtesy of Southwings

Next week, dozens of scientists (and not a few industry consultants) will descend on Charleston, for a five-day event organizers are promoting as a “symposium” on “Environmental Considerations in Energy Production.” They’ll be some discussing of natural gas drilling, but the bulk of the event is focused on the coal industry, and on mountaintop removal in particular.

The event is being coordinated by a Virginia Tech-based project that calls itself ARIES, which stands for the Appalachian Research Initiative for Environmental Science.  On its website, ARIES explains itself this way:

ARIES was formed to address the environmental impacts of the discovery, development, production, and use of energy resources in Appalachia, and is under the direction of the Virginia Center for Coal and Energy Research at Virginia Tech.

 The purpose of ARIES is to engage in detailed studies of the environmental impacts of the mining, gas, and energy sectors in Appalachia, focusing on both upstream (mining, drilling, and processing) and downstream (water, land, and air) issues. To meet that purpose, ARIES will conduct scientific inquiry and research, foster publication and contribute to the relevant literature, and engage in outreach efforts to share and disseminate results. Initially, work carried out by ARIES will focus on the coal mining industry.

But as we explained in a lengthy story in Sunday’s Gazette-Mail, this project is generating some controversy — in part because it’s not always being made clear that the science being produced and promoted is funded by $15 million in contributions from the region’s largest coal companies. Now, as the story explains, there are some perfectly sound arguments behind this project:

While working for the federal government, Craynon said, he always felt like agencies never had adequate science to properly deal with questions that citizens groups were increasingly asking about large-scale surface-coal mining. Now, he’s trying to fill that gap.

“The resolution of complex issues such as mountaintop mining may require radical boldness to break through years of distrust and allow for the adoption of a more public ecology,” Craynon wrote in an article published last year in the journal Resources Policy. “Through the cooperation of all parties, mountaintop coal mining may be modified so that better social, environmental and economic goals can be achieved and the interests of all affected parties can be adequately considered.”

At Virginia Tech, Karmis was already growing concerned about the lack of government funding for research on mining issues. Four years earlier, Karmis had served on a National Research Council panel that produced a report detailing the need for tens of millions of dollars annually in new money for coal-related research.

But there are other reasons that ARIES was formed (and funded), as we explained:

Meanwhile, Karmis was hearing growing complaints from coal industry executives who serve on his Virginia Tech research center’s advisory board.

Companies, such as Alpha Natural Resources, were upset about efforts by the Obama administration’s EPA to try to curb mountaintop removal’s impacts on water quality. Mine operators said their own studies contradicted peer-reviewed research the EPA cited as evidence of mining damage. However, agency officials were hesitant to rely on industry work produced by company consultants for use in litigation.

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Well, you certainly can’t fault Kentucky Coal Association President Bill Bissett for not sticking to his story … whether he’s gotten all the facts in or not.

When the latest study about mountaintop removal coal-mining’s potential impacts on public health in Appalachia was published last week, Bill apparently hadn’t read the paper. But that didn’t stop him from saying he didn’t think it was accurate. Here’s how the story read in the Hazard Herald:

Bissett said Friday he has not yet had chance to review Hendryx’s most recent study, but said he is skeptical of the findings.

“While I have not read this new publication, I have read his past work,” Bissett said. “In the past, Hendryx has used information gained through telephone interviews instead of medical records or actual examinations. While the challenges facing Appalachians and their health are well documented, Hendryx’s work seems more connected to political expediency than substance.”

There’s other coverage of the latest work by WVU’s Michael Hendryx here, here, here and here. And you can read the full paper, Personal and Family Health in Rural Areas of Kentucky With and Without Mountaintop Coal Mining, in The Journal of Rural Health. Here’s the abstract for those who want a summary:

Purpose: This study investigates health disparities for adults residing in a mountaintop coal mining area of Appalachian Kentucky. Mountaintop mining areas are characterized by severe economic disadvantage and by miningrelated environmental hazards.

Methods: A community-based participatory research study was implemented to collect information from residents on health conditions and symptoms for themselves and other household members in a rural mountaintop mining area compared to a rural nonmining area of eastern Kentucky. A door-to-door health interview collected data from 952 adults. Data were analyzed using prevalence rate ratio models.

Findings: Adjusting for covariates, significantly poorer health conditions were observed in the mountaintop mining community on: self-rated health status, illness symptoms across multiple organ systems, lifetime and current asthma, chronic obstructive pulmonary disease, and hypertension. Respondents in mountaintop mining communities were also significantly more likely to report that household members had experienced serious illness, or had died from cancer in the past 5 years. Significant differences were not observed for self-reported cancer, angina, or stroke, although differences in cardiovascular symptoms and household cancer were reported.

Conclusions: Efforts to reduce longstanding health problems in Appalachia must focus on mountaintop mining portions of the region, and should seek to eliminate socioeconomic and environmental disparities.

Continue reading…

Big mining appeal hearings coming up

Over the next week, there are oral argument hearings scheduled in two key mountaintop removal court cases.

First, a three-judge panel of the U.S. Court of Appeals for the District of Columbia will hear arguments tomorrow over the federal Environmental Protection Agency’s veto of the Spruce Mine, the largest mountaintop removal mining permit in West Virginia history. EPA officials appealed after a district court judge threw out the agency’s veto. The panel of judges for that case has already been announced: Karen LeCraft Henderson (appointed by President George H.W. Bush), Thomas B. Griffith (appointed by President George W. Bush), and Brett M. Kavanaugh (also appointed by President George W. Bush).

In its brief, EPA explained the issue in the Spruce Mine case simply:

Does § 404(c) of the Clean Water Act, 33 U.S.C. § 1344(c), authorize EPA to withdraw specification of navigable waters as disposal sites for fill material after the Corps issues a § 404(a) permit for disposal in those sites?

I’ve also posted a copy of the Arch Coal legal brief here, a brief filed by the West Virginia Department of Environmental Protection (opposing EPA’s veto) here,  a brief by environmental groups here, and a brief by industry groups including the National Mining Association here. You can read the EPA’s veto document here and the judge’s ruling overturning it here.

And then next Tuesday, the 4th U.S. Circuit Court of Appeals in Richmond, Va., will hear arguments in the Ohio Valley Environmental Coalition’s appeal of a decision concerning the Alpha Natural Resources’ Highland Reylas Mine. Citizens filed this appeal, after U.S. District Judge Robert C. Chambers ruled against them on a motion to block the permit Highland Reylas permit issued by the U.S. Army Corps of Engineers.

In their brief, citizen group lawyers stated the issues in their appeal this way:

1. Whether the Corps’ decision that Highland’s Reylas Mine will have cumulatively insignificant effects violated NEPA and the CWA and is arbitrary and capricious because the Corps materially misapprehended the baseline conditions existing in Dingess Run in advance of its decision?

2. Whether the Corps’ decision that Highland’s Reylas Mine will have cumulatively insignificant effects violated NEPA and the CWA and is arbitrary and capricious because the Corps irrationally dismissed the strong correlation between surface coal mining activities and downstream biological impairment?

You can read the U.S. Army Corps of Engineers’ brief here and the company’s brief here. Judge Chambers has been overturned in a mountaintop removal case before, when the 4th Circuit threw out a decision against the coal industry. Remember, though, that the 4th Circuit is quite a different court now than it was then. Stay tuned …

Never enough: The latest coal-mining legislation

A big victory in circuit court  — overturning a board ruling that promised to reduce coal-mining pollution (see here and here) — apparently isn’t enough for the industry lobby up at the West Virginia statehouse. There are a couple of new bills out this week …

First, there’s HB 2571, which aims to further weaken the conflict-of-interest provisions that govern membership of the state Environmental Quality Board.

And then, there’s HB 2579, which aims to derail efforts to force the coal industry to clean up its selenium pollution.

Lawmakers always seem eager to try to find ways to end up in court over their efforts to weaken environmental protections for West Virginia’s public health and environment.