Coal Tattoo

Who will President Barack Obama pick to run the Department of Interior’s Office of Surface Mining, Reclamation and Enforcement?

That’s a great  question. And while I’m not much on the name game that much of the Beltway media plays early in a new administration, what the heck…if the Louisville Courier-Journal is going to weigh in, I might as well join them.

This is going to be the first in a series of posts about what the Obama administration could do to put the R and the E — Reclamation and Enforcement — back in OSM.

There are two people I’ve most frequently heard mentioned as a possible OSMRE director: Lexington, Ky., lawyer Joe Childers and West Virginia University law professor Pat McGinley.

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radmacher_100x135.jpgLongtime Charleston Gazette readers will recall that my old friend Dan Radmacher wrote some pretty tough columns and editorials about the coal industry when he was the Gazette’s editorial page editor. These days, Dan is editorial page editor at the Roanoke Times, and today he had a column about EPA’s recent actions on the issue.

Here’s a little bit of what he said:

I’ve been following the controversy over mountaintop removal for well over a decade now. Tuesday’s announcement by the EPA is far from the most profound development, but it does offer hope that Washington will play a larger role in watching over the mountains, streams and valleys of states like Kentucky, West Virginia and, to a lesser extent, Virginia.

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Chris Hamilton takes on the Times

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I don’t see it in their online archives, so maybe The New York Times isn’t going to run West Virginia Coal Association Vice  President Chris Hamilton’s letter to  the editor in response to the Times mountaintop removal editorial, Appalachia’s Agony.

But Coal Tattoo will give Chris his say … heck, it gives me another opportunity publish that great photo above …

To the Editor:

 As I’m sure you’re aware, coal mining and the production of energy are the major economic drivers of West Virginia’s state economy.

Collectively, they are responsible for thousands of good paying jobs, more than 70 percent of all business taxes and a secure revenue stream for all fifty-five counties and local governments in the state. On a statewide basis, surface mining and mountaintop mining methods account for more than 40 percent of our production on an annual basis. In several regions and counties, it represents more than 75 percent of all mining and thus, all revenues generated from mining activity.

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Wind vs. Coal II

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In Wind vs. Coal I, I gave readers some criticism of the Coal River Wind Project jobs report, as well as a response from the report author and a reply from a coal industry critic.  Thanks to everyone who has so far contributed comments on that post, especially Bill Howley of the Power Line blog, foro some thoughts nobody has really brought up yet.

Just to continue this debate and discussion, I’m passing on this, from the CNN/Fortune Green Wombat blog:

Here’s a talking point in the green jobs debate: The wind industry now employs more people than coal mining in the United States.

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The entrance tunnel and water treatment facility for the Kensington Gold Mine against Lion Head Mountain near Juneau, Alaska can be seen. (AP Photo/Coeur Alaska, File) 

We had a comment on the Coal Tattoo a few weeks back that  asked what relevance an ongoing U.S. Supreme Court case out of Alaska had to the fight in Appalachia over mountaintop removal coal mining.  The reader, Red Desert, cited a story in the L.A.  Times about the case.

I’ve read a fair amount on this case, and followed some of these issues on The Pebble Blog, by my friend Elizabeth Bluemink at the Anchorage Daily News.

But to get some better information for Coal Tattoo readers, I’ve enlisted my first guest blogger, lawyer Derek Teaney  of the Appalachian Center for the Economy and the Environment. Here’s Derek’s take on the Alaska case:

teaney.jpgI believe the 2004 rule change referenced in the LA Times article regarding the Alaska gold mine case currently pending before the  United States Supreme Court must be the same rule change that the Bush administration used to overturn Judge Haden’s ruling regarding the “fill rule.” That was a 2002 rule change, however, and the LA times identifies it as a 2004 change. Far be it for me to suggest that the LA Times is inaccurate, but I can’t think of any other rule change that would have enabled the Alaska gold mine to proceed as planned.

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Coal Tattoo on Living on Earth

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A little shameless self-promotion for everybody’s favorite coal-mining blog …

The folks at Living on Earth were kind enough to have me on their show this week, to discuss all the hubbub over EPA’s actions to start more closely reviewing mountaintop removal permits.

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W.Va. Coal Association lobbyist Chris Hamilton

This just landed in Coal Tattoo’s e-mail inbox:

Sent: Friday, March 27, 2009 2:06 PM

Subject: Mountaintop Mining Coalition Membership

To:      Mountaintop Mining Coalition Membership  

 From: Chris Hamilton [VP, W.Va. Coal Association]

Date: March 27, 2009

 Subject: Update on Various Action Items

 In response to the intense activity in Washington and other states concerning mountaintop mining, the coalition is moving forward on several fronts which are delineated below.

First and foremost the coalition is attempting to arrange an immediate meeting with the CEQ and EPA to discuss the actions of the federal agencies over the past several weeks. Second, a multi-state congressional briefing on MTM is set for May 5-7 in Washington, DC, and follow up mine visits in Kentucky, Virginia and West Va are scheduled for May 20-21.

Additionally, we are planning to meet with the DGA and NGA and SLC through the help of Gov. Manchin and other public officials.

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Wind vs. Coal I

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A pretty smart guy I know in the coal industry took me to task a while back for a story I did about the report showing that the Coal River Wind Project would provide more jobs and tax revenues than the mountaintop removal operations proposed by Massey Energy.

I wanted to pass along his criticisms of the study (well, he was also criticizing my story for not pointing these things out), as well as a response from the author of the study, Evan Hansen of Downstream Strategies.

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EPA bumping mountaintop removal fight upstairs?

Buried near the end of the EPA’s letter objecting to issuance by the Corps of Engineers of a mountaintop removal permit for Colony Bay Coal Co.  are a fascinating couple of sentences.

Check it out: Third paragraph from the bottom of the last page …

Based on the evidence that this project will cause excursions from water quality standards, specifically, impairment of the aquatic life use, and will impact remaining unmined streams necessary to provide clean freshwater dilution to the watershed, EPA believes that the proposed project may result in substantial and unacceptable impacts to aquatic resources of national importance. EPA reserves the option to elevate the decision in accordance with Section 404 (q) of the Clean Water Act.

OK … what the heck does that mean?

It may just mean that EPA wants to bump this battle with the Corps of Engineers up a rung on the government ladder. Apparently, this provision of the law — and an agreement between EPA and the Corps — allows EPA to try to  strip the Huntington District Office of the Corps of its permit review and issuance authority, and move that authority to the Assistant Secretary of the Army for Civil Works, who runs the Corps (and is in Washington, where the White House and EPA can keep a closer eye on things)

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Clem Guttata at West Virginia Blue had a post today asking who would be the first reporter in West Virginia to get one of our elected officials to answer this question:

“If West Virginia wants to maximize coal mining employment, doesn’t more underground mining do that instead of more mountain top mining?”

OK, I’ll bite … I have this evening sent this question to staffers for Gov. Joe Manchin, Sens. Robert C. Byrd and Jay Rockefeller, and Reps. Nick Rahall, Alan Mollohan and Shelley Moore Capito.

I know, that’s only West Virginia’s congressional delegation. So maybe some reporters in other states who follow Coal Tattoo will ask their elected representatives the same question, obviously inserting their own state names instead of West Virginia.

If I hear back from any of West Virginia’s folks — and I’m giving them a deadline of early next week — I’ll collect those responses and post them here on Coal Tattoo.

A coal miner’s view

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West Virginia Public Broadcasting did an interview with Roger Horton, a coal miner and United Mine Workers official, about this week’s events concerning mountaintop removal mining. Horton is a truck driver for Patriot Coal Corp.’s Guyan mine in Logan County.

Here’s the link to the story,  which includes audio and the sound file for the entire interview as well.

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While two other permit objection letters sent to the U.S. Army Corps of Engineers on Monday earned a spot in an EPA news release — and therefore widespread press coverage — EPA also objected to a third permit, according to documents I just got from the Corps District in Huntington.

This letter, also sent Monday, objected that an expansion of Colony Bay Coal Company’s Colony Bay Surface Mine near Wharton in Boone County, W.Va., would harm downstream aquatic life, violate water quality standards, and cause forest fragmentation and habitat loss.

355px-united_states_army_corps_of_engineers_logosvg.pngEPA warned the Corps that the permit should not be issued before a complete Environmental Impact Statement is conducted.

I’ve posted the EPA letter here, and the Corps original public notice for the permit is posted here.

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My friend Jim Bruggers at the Louisville Courier-Journal and I both reported today about that International Coal Group mountaintop removal permit issued by the Corps of Engineers without the knowledge of the U.S. Environmental Protection Agency.

Jim’s story is here, and mine is here.

One thing to make clear: Attorneys for ICG and environmental groups reached a “standstill agreement” on that permit that requires the company to give the Sierra Club and the Kentucky Waterways Alliance 30 days notice before mining begins in certain areas of the operation.

I’m told that notice has not yet been provided.

By way of background, coal company and environmental group lawyers reached a number of these “standstill agreements” on pending permit applications. In exchange for not facing a court action to block mining, the companies agree to limit their operations — usually by promising not to fill in certain streams — without giving the environmentalists an opportunity to have their permit challenges heard in court.

It will be interesting to see how quickly ICG provides this 30-day notice, and what happens then. A court action to block the permit would force the Obama administration to come into court and make its full position on mountaintop removal more clear to everyone. And don’t forget, the Kentucky litigation would end up before the 6th U.S. Circuit Court of Appeals, not the 4th Circuit Court.

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Hey folks, some more news in from West Virginia Gov. Joe Manchin about his talks with the Obama administration on mountaintop removal. This just came over the Associated Press wire:

CHARLESTON, W.Va. (AP) — Gov. Joe Manchin’s chief of staff says Obama administration officials offered few specifics during meetings about the Environmental Protection Agency’s decision to hold surface coal mining permits to higher standards.

Chief Larry Puccio says he and Manchin met with assistant for Energy and Climate Change Carol Browner and other officials Wednesday and Thursday.

Puccio says none offered specifics about why the EPA has raised objections to two permits for surface mines in West Virginia and one in Kentucky. Likewise, Puccio says officials didn’t say the administration has a new surface mining philosophy.

Rather, Puccio says the officials told Manchin the new administration may do things differently. They agreed to visit West Virginia for more discussions soon, though no date was set.

I’ve asked a couple of times to interview Manchin directly about his meeting with Obama aides on this issue … so far, his staff says the governor has just been too busy

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Readers of the two daily newspapers in Charleston, W.Va., were treated to two very different editorials this morning on the Obama administration’s move to more closely scrutinize mountaintop removal coal mining.

To folks who regularly read both newspapers, it probably came as no surprise that  the Gazette supported what EPA is doing, while the Daily Mail made out like the world is coming to an end because President Barack Obama wants to actually enforce the Clean Water Act.

The Gazette editorial said said EPA administrator Lisa Jackson’s order that her staff actually start reviewing Army Corps of Engineers permits for compliance with Clean Water Act rules was welcome news:

Jackson’s directive to obey the law is such a change from the last eight years of purposeful incompetence by federal regulators that readers may be forgiven if they are startled by it. Industry advocates predicted doom and gloom, apparently by reflex rather than reason, as several said they were not sure exactly what the EPA meant to do. There is no block or moratorium on permits, despite rumors to the contrary.

The Daily Mail, by contrast, resorted to xenophobic name-calling:

With this action, the Obama administration warmed the hearts of radical supporters like the Natural Resources Defense Council – see its counsel’s reaction at right – and EarthJustice, which has sued to stop mountaintop removal mining.

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Lots of folks are still scratching their heads, trying to figure out where President Barack Obama’s EPA is really heading on mountaintop removal.

Nobody has any clear answers, and we might not know for a while.

But remember those two letters  (here and here) that EPA sent to the Corps of Engineers on Monday, outlining serious concerns about the damage that would be done if the Corps issued two mountaintop removal permits in West Virginia and Kentucky?

Well, someone sent me a letter in which the Bush administration offered its comments on a similar mountaintop removal permit. The contrast is pretty striking…

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Rahall on EPA on mountaintop removal

rahall_photo.jpgAs chairman of the House Natural Resources Committee, West Virginia Congressman Nick J. Rahall has a lot of authority over how mountaintop removal is regulated. His committee oversees the U.S. Department of Interior and its Office of Surface Mining, Reclamation and Enforcement. Also, Rahall’s district makes up most of the southern coal counties of West Virginia.

So, I wanted to give everyone the complete text of the statement Rahall issued today on the EPA action on mountaintop removal:

            “It is unfortunate that the recent action taken by EPA has been so badly misinterpreted that it caused a period of confusion and alarm.  In these recent actions, the EPA is simply reasserting its longstanding legal authority under the Clean Water Act, in the same way that it did for many years without detriment to the coal industry.  

 

            “I have been assured by the EPA that it intends to work to ensure clarity of understanding and certainty as it continues to help the Corps of Engineers clear out the long backlog of mining permit applications that resulted from years of litigation. 

 

            “At this point, all of the involved agencies at all levels need to work cooperatively – among each other and with coal operators, mineworkers, and mining community residents – to ensure that coal mining, which is so necessary to our economy, will continue to thrive, and that it will do so in accordance with the law, balancing the protection of our communities with the preservation of coal jobs.”  

Can’t the U.S. EPA and the federal Army Corps of Engineers get along?

Apparently not … because just one day after EPA Administrator Lisa Jackson announced a plan to more closely scrutinize Corps permits for mountaintop removal mines, Corps officials decided to reinstate a major permit in Kentucky. Corps officials had suspended their approval of the International Coal Group permit a little more than a year ago, after the Kentucky Waterways Alliance and the Sierra Club filed a Clean Water Act lawsuit in federal court to stop it.

In a news release issued very late this afternoon, the Corps said ICG had eliminated one valley fill and one sediment pond as a result of discussions with agency officials.

“With this analysis, the Corps is confident that the discharges in waters of the United States will not result in significant individual or cumulative impacts,” the Corps said.

My friend James Bruggers at the Louisville Courier-Journal did a lengthy story on this particular mining proposal about a year ago. It doesn’t appear to be on the C-J Web site, but it is posted here by the Appalachian Center for the Economy and the Environment.

More news in the wake of the Obama administration’s initiative to more closely scrutinize mountaintop removal mining permits … EPA may not be banning mountaintop removal, but a couple of U.S. Senators would like to do just that.

Bipartisan legislation was introduced today in the U.S. Senate to ban mountaintop removal mining. The “Appalachian Restoration Act” was introduced by Sen. Benjamin Cardin, D-Md., and Sen. Lamar Alexander, R-Tenn.

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We’ve got responses in now from most of West Virginia’s political leaders, with the latest one coming from Sen. Jay Rockefeller:

“In West Virginia we need to focus all of our resources on solutions that create more jobs and move our economy forward so families can thrive.  All throughout America, every industry and level of government needs to make adjustments to do just that.

“Yesterday, the EPA sent a letter to the Army Corps of Engineers expressing concerns about West Virginia and Kentucky surface coal mining projects.  The EPA later sent a clarification on what was being reported, highlighting that the letter to West Virginia was specific to only one permit application in Ethel.

“Let me make very clear – America has over a 200 year history of mining West Virginia coal, and that is not going to change any time soon.  Coal is an incredibly valuable resource and any alarmist reports suggesting that the EPA’s recent letters are the end of coal mining are inaccurate and unhelpful. 

“I strongly encourage state and business officials to meet at one table with EPA and Corp of Engineers officials to discuss the best solutions – solutions that create jobs and protect our beautiful state and its people – all at the same time.  This is entirely possible to do.   

“West Virginia should never forget, we are home to one of the most valuable resources on earth and we should be inspired by what the future holds for our state – we all have an opportunity to lead America securely in to the 21st Century and I am confident that we will do just that.”

[UPDATED at 9 p.m. Wednesday —

Readers, I  had a call and e-mail message from Sen. Rockefeller’s office … they weren’t very pleased with the headline on this Coal Tattoo post. I tried to explain that my point was that Sen. Rockefeller didn’t express any concern about the damage being done by mountaintop removal, and suggested no changes were needed (“Let me make very clear – America has over a 200 year history of mining West Virginia coal, and that is not going to change any time soon.”) …

Rockefeller’s staff asked that they be allowed to clarify their statement, so here is that clarification:

“Senator Rockefeller believes that all throughout America, every industry and level of government needs to make adjustments to create more jobs, improve our quality of life, and move our economy forward – and that includes the coal industry.  America has over a 200 year history of using West Virginia coal to power our economy.  Coal is an incredibly valuable resource and any alarmist reports suggesting that the EPA’s recent letters are the end of coal mining are inaccurate and unhelpful.”

Everybody go that? Good.]