Coal Tattoo

Are we headed for a coal policy train wreck?

Over the weekend, there was certainly an interesting collection of news and commentary that, taken together, raises lots of questions about the future of the coal industry in our region.

First, there was the bombshell new study from climate scientist James Hansen, as described by the great AP science writer Seth Borenstein:

The relentless, weather-gone-crazy type of heat that has blistered the United States and other parts of the world in recent years is so rare that it can’t be anything but man-made global warming, says a new statistical analysis from a top government scientist.

The research by a man often called the “godfather of global warming” says that the likelihood of such temperatures occurring from the 1950s through the 1980s was rarer than 1 in 300. Now, the odds are closer to 1 in 10, according to the study by NASA scientist James Hansen. He says that statistically what’s happening is not random or normal, but pure and simple climate change.

“This is not some scientific theory. We are now experiencing scientific fact,” Hansen told The Associated Press in an interview.

You can read the study for yourself here,  and also can check out Dr. Hansen’s op-ed that was published in Sunday’s Washington Post, in which he says:

This is the world we have changed, and now we have to live in it — the world that caused the 2003 heat wave in Europe that killed more than 50,000 people and the 2011 drought in Texas that caused more than $5 billion in damage. Such events, our data show, will become even more frequent and more severe.

There is still time to act and avoid a worsening climate, but we are wasting precious time. We can solve the challenge of climate change with a gradually rising fee on carbon collected from fossil-fuel companies, with 100 percent of the money rebated to all legal residents on a per capita basis. This would stimulate innovations and create a robust clean-energy economy with millions of new jobs. It is a simple, honest and effective solution.

The future is now. And it is hot.


In this Thursday, Aug. 2 2012 photo, Dr. James E. Hansen head of the NASA Goddard Institute for Space Studies gestures during an interview with the Associated Press at his office in New York.  (AP Photo/Mary Altaffer)

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What’s next for mountaintop removal permit cases?

Buried at the end of another one of his anti-EPA commentaries on the latest mountaintop removal ruling, Hoppy Kercheval over at West Virginia MetroNews buries an admission that I’m sure his advertising clients at Friends of Coal are not especially happy about:

The judge did point out, however, that his decision has nothing to do with the ongoing debate about the economic and environmental impacts of mountaintop removal mining.

“How to best strike a balance between, on one hand, the need to preserve the verdant landscapes and the natural resources of Appalachia and, on the other hand, the economic role that coal mining plays in the region is not, however, a question for the Court to decide,” the judge wrote.

Fair enough. Let the public policy makers and the affected parties fight that out. And frankly, because of the destructive nature of mountaintop removal mining, it’s a tough sell for the industry.

The destructive nature of mountaintop removal? Hoppy really wrote that? The next thing you know, Don Surber and the Daily Mail are going to have a mea culpa on global warming, admitting that they’re wrong to ignore the overwhelming scientific evidence on what is probably the greatest threat facing human beings. West Virginia media’s Bray Cary already turned around on that crucial issue, to the point that his paper, The State Journal, has said it’s time for West Virginia to look beyond coal. And despite complaints from some that he didn’t go far enough, the recent statements from Sen. Jay Rockefeller about the coal industry’s public relations campaign are a significant step forward politically here in West Virginia’s coalfields.

So one question lots of people are asking is: What next? What comes now in the continuing saga of the future of mountaintop removal and coal mining in general, a debate that U.S. District Judge Reggie Walton plainly stated his ruling against the Obama EPA comes nowhere near resolving.

Well, Hoppy asked Gov. Earl Ray Tomblin about that on Talkline yesterday, and there was one especially interesting point made by the governor regarding the Walton decision:

There’s always the right to appeal by EPA. But we’ve had instances where our Department of Environmental Protection has been in court over environmental rulings that they have made. Normally when the judge says you are wrong, then our DEP has backed off. We would certainly hope that after two times that Lisa Jackson and the federal EPA would do the same.

Now, we have no idea of EPA is going to appeal or not. And if you’ve ever tried to get the Obama EPA to answer simple questions about things like this, then you can certainly understand the frustration DEP officials and the coal industry have in trying to deal with the agency. And keep in mind that we’re expecting another major mountaintop removal permit ruling from U.S. District Judge Robert C. Chambers any time now.

But for now, go back and read this part of what Governor Tomblin said again:

Normally when the judge says you are wrong, then our DEP has backed off.

Really? Well, more than a year ago a judge — in the form of the state Environmental Quality Board — told DEP it was wrong about a mountaintop removal permit, Arch Coal’s New Hill West Mine in Monongalia County. In its formal order, the EQB said that DEP wrongly ignored evidence about not only specific water quality damage at that mine site, but about the broader science showing that large-scale surface mines are degrading Appalachian streams.   The board concluded:

The Board finds that a growing body of science has demonstrated that discharges from surface coal mines in Appalachia are strongly correlated with and cause increased levels of conductivity, sulfate, and total dissolved solids in water bodies downstream from mines. The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams. The harm and significant adverse impacts include the extirpation of entire genera and the disruption of community composition crucial to functioning ecosystems.

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In the rush to get a blog post and a print story finished about yesterday’s big federal court ruling throwing out a major part of the Obama administration’s crackdown on mountaintop removal (and get over to the state Department of Environmental Protection for a hearing on gas drilling rules), I didn’t have a chance to check in with DEP Secretary Randy Huffman’s (above, right, with then-Gov. Manchin and DEP lawyer Ben Bailey) reaction to the ruling by U.S. District Judge Reggie B. Walton.

So I checked in with Randy this morning and he told me:

It’s pretty straight forward. It wasn’t a surprise. EPA was promulgating standards without using the rule of law to promulgate standards. That’s what we sued them over. This was a no-brainer. If they want to change the standards, they need to go through the process of changing the standards.

No question that the federal court ruling is a huge victory for Randy Huffman, whose agency was among the parties that sued EPA over its water quality guidance and for the coal industry. The West Virginia Coal Association said in its statement:

It is time for the EPA and the Obama Administration to end this job-killing assault and restore the proper balance between the federal government and the states. It is time for the EPA and the Obama Administration to obey the laws passed by Congress rather than legislate through regulation. And it is far past time to put America back to work.

The ruling also had now-Sen. Manchin feeling pretty good, and prompted this remark from Gov. Earl Ray Tomblin:

As the court correctly recognized, the West Virginia DEP knows what’s best for West Virginia, not the federal government. I have every faith that DEP Secretary Huffman and his administration will strike a reasonable balance between protecting our mountains and streams, and issuing new mining permits in support of our coal industry.

Well, another state agency — the board charged with hearing appeals of WVDEP’s decisions on water pollution permits, isn’t so sure about that part where WVDEP knows what’s best for West Virginia … Take a look at this quote from another mountaintop removal decision that was released yesterday:

Despite long-standing and abundant evidence with the WVDEP’s watershed database for biological damage … in streams draining surface mines in the West Virginia coalfields, the WVDEP has made little attempt to determine the cause of the damage, or to limit it.

That’s from the state Environmental Quality Board, which voted 3-2 to again overturn WVDEP’s decision to grant a mountaintop removal permit for Arch Coal Inc.’s New Hill West Mine in Monongalia County (see here, here, here and here for previous stories).

In their ruling, the EQB majority (Chairman and Shepherd professor Ed Snyder and Marshall professors Scott Simonton and Charles Somerville) offered a clear and strong support for the growing scientific consensus that large-scale surface coal mining in Appalachian is greatly damaging water quality.  For example:

— The Board finds that a growing body of science has demonstrated that discharges from surface coal mines in Appalachia are strongly correlated with and cause increased levels of conductivity, sulfate and [Total Dissolved Solids, or TDS] in water bodies downstream from mines. The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams.


The consistency of the correlations identified in the research on the relationship between elevated conductivity from mine discharges and impacts to aquatic organisms has been so strong that it has led scientists to conclude that ‘collectively, there’s a considerable amount of evidence that strongly suggests that conductivity associated with mine drainage is causing impairment — biological impairment — in streams.

Keep in mind that the board ruled 3-2 in this case, even after Gov. Tomblin last year replaced the two board members considered most favorable to environmentalists and citizen groups.  You can read the full EQB ruling here.

Breaking news: EPA mining guidance thrown out

Just in from U.S. District Court for the District of Columbia: Judge Reggie B. Walton has thrown out the U.S. Environmental Protection Agency’s water quality guidance for coal mining in Appalachia, a central part of the Obama administration’s crackdown on mountaintop removal.

Here’s the bottom line from the ruling:

The Court is not unappreciative of the viable interests asserted by all parties to this litigation. How to best strike a balance between, on the one hand, the need to preserve the verdant landscapes and natural resources of Appalachia and, on the other hand, the economic role that coal mining plays in the region is not, however, a question for the Court to decide. In this litigation, the sole inquiry for the Court is the legality of the Final Guidance, and, for the reasons set forth above, that inquiry yields the conclusion that the EPA has overstepped its statutory authority under the CWA and the SMCRA, and infringed on the authority afforded state regulators by those statutes.

UPDATED: Read our Gazette print story online here.

I’ve posted a copy of Judge Walton’s decision here. Federal judges have previously thrown out EPA’s plan to coordinate mining permit reviews with other agencies and the EPA move to veto the permit for the largest strip-mine in West Virginia history.

Here’s a statement just out from the National Mining Association, which had challenged the EPA guidance:

“NMA is gratified by today’s decision in NMA v. Jackson in which the U.S. District Court for the District of Columbia set aside the Environmental Protection Agency’s (EPA) Final Guidance for coal mining operations in Appalachia because the guidance and agency’s activities have overstepped the bounds of the law. As we have always maintained, EPA has engaged in an unlawful overreach in its attempt to commandeer the permitting responsibilities the law places with other state and federal agencies.

“Today’s decision has truly given coal miners and coal mining communities their ‘day in court’ and has affirmed NMA’s longstanding belief that EPA overreached its authority in its virtual moratorium on Eastern coal mining permits and denied those operations the protections provided for under the law. It is now time to get miners back to work by allowing the state permitting agencies to do their jobs.”

 UPDATED: Here’s what EPA had to say today — 

The EPA is reviewing today’s District Court decision regarding the agency’s July 21, 2011, Mountaintop Mining Guidance. We will continue to protect public health and water quality for Appalachian communities under the law.

The follow-up story in today’s paper about Saturday’s big anti-mountaintop removal protest at Hobet Mining was certainly discouraging. As the Gazette’s Travis Crum reported:

Matthew Louis-Rosenberg, a Sandstone resident and the group’s spokesman, alleges that State Police cooperated with coal supporters and miners who showed up to intimidate them. State Police spokesman Sgt. Michael Baylous said police support an individual’s right to protest and showed no preferential treatment in enforcing the law.

Among the troubling reports:

He alleges that one member, Dustin Steele, 21, of Matewan, was assaulted by law enforcement while in custody. Louis-Rosenberg was unsure which agency allegedly carried out the assault and hoped to learn more by speaking to Steele.


An independent journalist also was arrested before Saturday’s protest.  Babette Hogan, 52, of San Francisco, told the Sunday Gazette-Mail she was taking photos from the passenger seat of a vehicle on Kanawha State Forest Drive when a trooper demanded her camera. When she refused, Hogan was arrested and charged with obstruction, she said.

Now. all of the facts aren’t in yet. And there is no question that being a police officer is made more difficult when citizens decide to break the law to make a political point — especially when in doing so they potentially put their safety and the safety of hard-working coal miners at risk.

But the West Virginia State Police have plenty of other things to worry about, and given the State Police’s formation a century ago to essentially help put down the unionization efforts in our state’s coalfields, it’s vitally important that the agency not only neutrally enforce the law, but also ensure that everyone walks away from these sorts of potential confrontations without getting hurt.

Perhaps Gov. Earl Ray Tomblin will call in his State Police leadership and investigate what happened here, to ensure the agency is truly out to protect everyone’s right and safety, and ensure that the media’s ability to gather the news is also protected, even from troopers who might not like having their picture taken.

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Report: Mountaintop removal coal exports rising

As House Republicans this morning begin another in a series of their hearings trying to somehow turn the federal Office of Surface Mining’s somewhat bumbling efforts to rewrite the stream “buffer zone” rule into an attack on jobs as part of the Obama administration’s alleged “war on coal,” House Democrats are taking a different approach. They’re releasing a fascinating new report that documents where an increasing share of coal from mountaintop removal coal mining is going.

The report, called “Our Pain, Their Gain: Mountains Destroyed for Coal Shipped Overseas,” concludes:

Coal exports have nearly doubled since 2009 to 107 million tons last year, now accounting for almost 12 percent of U.S. production. Three out of every four tons that are exported come from the Appalachian region, and often this coal is produced by mountaintop removal mining — a devastating practice that has blanketed communities with soot, contaminated drinking water, and destroyed 2,000 miles of streams.

Specifically, a review of government data by Democratic staff of the House Natural Resources Committee found:

— Ninety-seven mountaintop removal, steep slope, and surface mines in West Virginia, Pennsylvania, Kentucky, and Virginia exported American coal overseas in 2011, compared to 73 in 2008.

— Coal exports from surface mines in these four states have grown by 91 percent since 2009 to 13.2 million tons in 2011.

— Twenty-five  of these mines exported more than half of their production in 2011. And six of these mines exported nine out of every 10 tons they produced last year.

— Overall, these 97 mines exported 27 percent of their production in 2011. In 2008, mines participating in the export trade sent 13 percent of their production overseas.

Rep. Ed Markey, D-Mass., and the committee’s ranking Democrat, just told this morning’s hearing:

While coal companies are more than happy to ship this coal overseas to the highest bidder, it’s surely the Appalachian people who bear the greatest cost.


It’s important to remember that exports still make up a small share of coal production, nationwide and in the Appalachian region. As the report notes, even after doubling since 2009 to 107 million tons, exports still account for only 12 percent of U.S. coal production. While this is obviously an imporant trend, it’s far too early to — as anti-mountaintop removal activists are doing today — proclaim that this type of mining is mostly aimed at helping other countries.

Photo by Vivian Stockman, Ohio Valley Environmental Coalition.

I haven’t had a chance yet to blog about a story we published yesterday in the Gazette. Here’s what it reported:

Three new scientific reports (See here, here and here) have begun to answer questions about how mountaintop removal mining could play a role in higher levels of illnesses among residents in the Appalachian coalfields.

Researchers have found higher levels of certain types and sizes of pollution particles in communities near mountaintop removal sites, and also believe they’ve identified one potential mechanism for that pollution impacting public health.

The findings, presented at recent academic conferences, add to the results of nearly two dozen West Virginia University papers that found higher levels of health problems — including cancer and birth defects — among residents living in the shadow of large-scale surface coal mining.

“It moves beyond the epidemiological data to examine what the real environmental conditions are in the communities where people live near mountaintop removal operations,” said WVU researcher Michael Hendryx, who co-authored the previous papers and the new reports.

As our story made clear, these new studies have not yet been published in peer-reviewed journals, but have been presented at academic conferences and are in the pipeline for publication. These are, though, exactly the sorts of investigations that WVU’s Michael Hendryx has made clear are needed to follow up on and explain his findings that folks who live near mountaintop removal mining are at greater risk of serious health problems, including cancer and birth defects. So far, I haven’t seen any other local or regional coverage of these studies. You have to wonder if the Daily Mail will finally get around to doing news coverage of the mountaintop removal-public health studies as part of its new series on cancer, or if the editors across the hall are content to instead just let the coal industry provide readers with silly commentary on the subject.

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AP photo by Jeff Gentner

New federal legislation was introduced today that seeks a moratorium on new mountaintop removal permits and demands that the federal government examine the growing scientific evidence that residents living near these mining operations are at greater risk of serious health problems, including cancer and birth defects.

Here’s part of the announcement:

Thirteen Members of Congress led by Representatives Dennis Kucinich (D-OH) and Louise Slaughter (D-NY) today introduced legislation to provide a full scientific analysis of the potential health threats to communities affected by mountaintop mining. H.R. 5959, The Appalachian Communities Health Emergency Act (ACHE), would also place a moratorium on new mountaintop removal coal mines and expansion of existing mines until the science demonstrates the mines will not cost local families their lives or their health.

Kucinich said:

The Appalachian Communities Health Emergency Act will provide the families in these communities the answers and the protection they deserve. Mountaintop mining is a practice in which entire mountaintops are blown up in order to access a seam of coal sitting deep inside the mountain. The evidence is growing that toxic chemicals that are safely sequestered in rock inside the mountain, get released when the mountains are turned inside out.

The ACHE Act will stop new mountaintop removal coal mines until the science clearly demonstrates the mines will not cost these hard working communities their health or their lives. It will also fund some of the best researchers in the world to carry out that science.

There’s also a press release from coalfield citizen groups here.  Longtime activist Bo Webb said:

The Appalachian Communities Health Emergency (ACHE) Act offers an opportunity to all House members to put differences aside and swiftly pass a bill that will protect the health and lives of the unborn.

Other sponsors include: Louise Slaughter (D-NY), Lynn Woolsey (D-CA), Judy Chu (D-CA), John Yarmuth (D-KY), Michael Honda (D-CA), James Moran (D-VA), Raul Grijalva (D-AZ), Lucille Roybal-Allard (D-CA), Earl Blumenauer (D-OR), John Conyers (D-MI), Maurice Hinchey (D-NY) and Keith Ellison (D-MN).

We broke the story yesterday on Coal Tattoo about the federal Office of Surface Mining Reclamation and Enforcement stepping in to potentially stop the West Virginia Department of Environmental Protection from retroactively granting Alpha Natural Resources an extension of time to start mountaintop removal operation at one of the former Massey Energy permits along the Coal River Valley.

Earlier today, I finally got the chance to talk to WVDEP mining director Tom Clarke about the situation, and Tom told me his agency hasn’t decide yet whether it will appeal the decision of OSM Charleston field office chief Roger Calhoun:

We’re reading the letter and we are looking at our policy and our regulations.

Over on Twitter, Coal River Mountain Watch’s Rob Goodwin — whose work monitoring WVDEP permit actions in the area brought this whole thing to light in the first place — raised an interesting question about the way state officials handled this:

What does this say about objections to the “retroactive”  Spruce decision? WVDEP willing to break the law for coal?

Certainly, the coal industry and its political backers among West Virginia’s elected officials have complained loud and long that it was wrong for the U.S. Environmental Protection Agency to step in and veto a Clean Water Act permit for the Spruce No. 1 Mine after the federal Army Corps of Engineers had already issued the permit. WVDEP officials have joined in such criticism, saying in one letter about the Spruce Mine:

The WVDEP is committed to application of the existing laws, rules and policies to protect the environment … It does not support retroactive, ad hoc departures from existing laws, rules and guidelines. As regulators, operating within the authority of existing rules and laws, such an approach is unsupportable and undermines the considerable efforts over the years by the WVDEP, Corps and USEPA to develop consistent, predictable and fair permittting programs and procedures.

Now, Tom Clarke doesn’t think this is a fair comparison. The Spruce Mine was a permit WVDEP thought was completely within the law and acceptable, he told me. The Corps approved it, and EPA never stepped in at the time to block it, Tom said. The “retroactive” veto by EPA went against these previous approvals, and that was the problem, Tom said. In the case of the Eagle No. 1 permit, Tom said, WVDEP wasn’t going against its previous decisions to approve the permit — it was simply affirming those decisions and, he said, following its own policy regarding extending that permit.

But that’s where the problem is here for WVDEP, with this little policy.  Stick with me here: Federal and state law contain similar provisions (see Section 506 (c) on page 72 of the pdf ) regarding terminating surface mining permits. The federal language says:

A permit shall terminate if the permittee has not commenced the surface coal mining operations covered by such permit within three years of the issuance of the permit: Provided, That the regulatory authority may grant reasonable extensions of time upon a showing that such extensions are necessary by reason of litigation precluding such commencement or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee.

This is important. Congress put the language in there for a reason, as this legislative history lesson reminds us:

To assure that no one will be locked into outdated reclamation requirements because permits are taken out and renewed without operations being undertaken, subsection (c) provides that permits will terminate if the permittee has not begun operations within 3 years of the issuance of the permit unless otherwise provided in the permit.

Years ago, WVDEP adopted language similar to the federal statute. That language was approved by OSM as part of the required federal oversight of the state’s surface mining regulatory program.

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Feds: WVDEP wrong to extend Coal River permit

Photo from U.S. Office of Surface Mining

Word just in this afternoon about a potentially major decision by the U.S. Office of Surface Mining Reclamation and Enforcement …

OSMRE officials here in Charleston have determined that the West Virginia Department of Environmental Protection was wrong in its decision to retroactively extend a Massey Energy/Alpha Natural Resources mountaintop removal permit along the Coal River Valley in Raleigh County, W.Va. I’ve posted a copy of a letter from OSM Charleston Field Office Director Roger Calhoun to WVDEP mining Director Tom Clarke here.

Essentially, the letter says that OSM is taking this action because WVDEP’s policy to allow such “retroactive” permit extensions or renewals is not part of the state’s federally approved program for regulating West Virginia’s surface coal-mining industry.

In his letter to Clarke, Calhoun concludes that WVDEP’s actions on this permit were “arbitrary, capricious, and an abuse of discretion.” The letter gives WVDEP five days to file an appeal with OSM’s regional director. If Calhoun’s determination ultimately wins out, then OSM could launch a federal inspection and ultimately take action, under the Obama administration’s 2011 policy to get OSM back in the business of more closely examining potential defects in state agency permit decisions.

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My own experience with Rep. Nick J. Rahall is that he’s a kind, patient and — above all — very gracious man. Rep. Rahall has gone out of his way to give me tons of time for interviews, even though he probably knew the questions weren’t going to be especially easy and the resulting story might not be what politicians consider positive coverage.

So it’s been a bit troubling to hear stories of how some constituents have been treated in recent years when they’ve tried to convince Rep. Rahall that he is wrong to be such a staunch supporter and defender of mountaintop removal. If you watched any of the video stream yesterday of the arrests made of anti-mountaintop removal activists in Rep. Rahall’s offices, what you saw was a politician whose become very defensive of his record and very angry with those who continue to question the direction his politics have gone.

On the one hand, Rep. Rahall did give these young activists a half-hour meeting, even though they arrived without an appointment and were clearly part of some organized protest that was set up to end with peaceful civil disobedience arrests. Some of the “tweets” I saw from activist groups were a bit baffling, given that they were condemning Rep. Rahall not for his position on mountaintop removal, but for daring to think that once a meeting was over, people should leave his office so he could move on to other things (which in this case included meeting with the families of some of the miners who died in the Upper Big Branch Mine Disaster). The whole point of yesterday’s action was for some folks to get arrested, to it’s silly to complain when that actually happens.

On the other hand, from what I saw, Rep. Rahall was reduced to complaining that these activists (including his constituents) were “too negative” or “too pessimistic” about West Virginia and its future, and about the coal industry. Rep. Rahall praised the development of the new Boy Scout Jamboree facility in Fayette County. But he apparently forgot that, in order to make that project work, the state had to spend a significant chunk of money cleaning up some of the coal industry’s messes. (And like most West Virginia political, business and media leaders, Rep. Rahall certainly wasn’t interested in saying anything about the incredibly discriminatory policies and practices of the Boy Scouts).

What happened since the arrests in Rep. Rahall’s office, though, is especially interesting.

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Coal pornography: What is this all really about?

Photo from iLoveMountains via House report.

I think often about the incredible irony that Don Blankenship named his political action group, “And for the Sake of the Kids.”   How about “for the sake of” the orphans of the many terrible mining deaths caused by production-over-safety view of coal mining advanced by Blankenship during his leadership at Massey Energy?

Or how about “for the sake of” kids like Makayla Urias? She  got her five minutes of unfortunate fame this week, when a photo of her in a bathtub full of mining-tainted water got bounced all around the Internet in the latest media skirmish in the campaign against mountaintop removal coal mining. Haven’t seen the photo? I’m surprised. You can check it out yourself here, on the website of Katie Falkenberg, the freelance photographer who took the shot. UPDATED: The photo has been removed from Ms. Falkenberg’s website, and a note there says, “The family has declined media request to use this photo; it has therefore been removed from the photo essay to honor their wishes.”

If I seem a little troubled by all of this, I guess I am.  I’ve got bathtub photos of my son. Most parents have them. Such moments are later treasured by parents, and bring eye-rolling embarrassment or worse from the kids.  But not many kids will get stuck with hearing the story of the time their bath-time photo was not only paraded around the halls of Congress, tossed around all matter of websites, but also prompted a totally absurd child pornography investigation by the Capitol police.

The story made it into the mainstream media this morning, with this write-up in the Denver Post:

An award-winning coal-mining activist was questioned for 45 minutes by police on suspicion of child pornography after U.S. Rep. Doug Lamborn’s energy and mineral resources subcommittee decided a photo she submitted of a child in foul bathwater was inappropriate.

Photo by Tom Dusenbery

Maria Gunnoe of West Virginia had been invited by Lamborn — a Colorado Springs Republican and the subcommittee’s chairman — to testify at his hearing Friday on the Spruce Coal Mine in her state. It was the fourth time Gunnoe had been in front of the committee and the second time she had been there at the behest of Lamborn.

Gunnoe, a grandmother, said that when she has spoken to the committee previously, she never felt as if members made eye contact, so she decided to bring a photo by a freelance photojournalist of a child taking a bath in dirty water — allegedly polluted by coal mining — to put up on the panels above her head.

“I was drawn to the photo because I think it really captured what happened here,” Gunnoe said from her home Tuesday.

The general story, as I understand it, goes like this:  Committee staff and/or members decided the photo was somehow “inappropriate” and directed that Gunnoe not be allowed to show it during her hearing testimony. Then after the hearing, she got hauled into a nearby room and questioned by a U.S. Capitol Police officer. Republicans or their staffers had apparently suggested this photo was child pornography. I’m still a little baffled that one of the environmental group lawyers or lobbyists who might have been present at the time didn’t just step in and advise Maria not to go with those police officers unless she was under arrest. Then again, who would have possibly imagined the police going along with something as nutty as this.

AP photo

The Denver Post article added some interesting details, which paint Lamborn as trying to distance himself from all of this (without his actually saying his staff acted inappropriately for their role in this harassment of a citizen of these United States):

Lamborn — who leads the energy and mineral resources subcommittee under the House Committee on Natural Resources — said he heard about the photo before the hearing and decided to pull it from the planned presentation without looking at it. As chairman of the subcommittee, he is in charge of the hearing, the witnesses and the staff.

“I accept the judgment of professional staff,” Lamborn said Tuesday. “If it’s inappropriate, I don’t think I should be viewing it. The fewer people who viewed it, the better.”

Lamborn on Tuesday said he still hadn’t seen the photo and didn’t intend to.

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Believe it or not, I’m sitting here watching today’s House hearing on mountaintop removal through a second time … and I’m glad I did, because somehow I missed this the first time, and I swear — I’m not making this up.

I was listening to the testimony from Logan County Sen. Art Kirkendoll, a staunch proponent of the coal industry in general and mountaintop removal in particular. And here’s what he was saying, if I followed him: That he supports mountaintop removal in part because flattening off mountains provides a place people of his community can live without fear of floods.  Here’s what he was saying:

… We’ve gotten through two tremendous floods in Logan county in the last few months.  Millions of your dollars coming to our area, Army Corps, everybody in there, the troops, cleaning up our area. If those people had been on some of these surface mined areas that we have, that wouldn’t have happened.

Now, if you think you can’t get killed, go back to the Buffalo Creek flood a few years ago. A hundred and twenty four people.

Now, if I read his prepared testimony correctly, Sen. Kirkendoll went to Washington to try t0 defend the coal industry, to help in industry’s attacks on the Obama administration’s “war on coal.”

Ignore for a second the clear science that shows mountaintop removal mining generally makes it more likely that flash-floods in places like Logan County will occur, and will be worse when they do occur. But Buffalo Creek? Did Sen. Kirkendoll forget that the Buffalo Creek Disaster was hardly your typical flash flood? Does he not understand this was the collapse of a poorly engineered, poorly constructed, and poorly maintained coal-slurry impoundment that caused those deaths in February 1972?

And if he does know these things, how in the world does Sen. Kirkendoll think that talking about Buffalo Creek helps the coal industry?

EPA, the Spruce Mine and the future of coal

Today’s New York Times included another editorial about the Spruce Mine, (see previous ones here, here and here) this one praising the Obama administration for appealing a judge’s decision that overturned the U.S. Environmental Protection Agency’s veto of that permit:

The administration is right to stop this mine as part of its broader campaign to halt a ruinous and unnecessary practice.

Harvard law professor Richard Lazarus recently criticized the judge’s Spruce Mine decision in an article for the Environmental Forum, published by the Environmental Law Institute, and we’ve seen in recent days that the coal industry’s claims that tougher mountaintop removal permit reviews by EPA would destroy the coal industry simply haven’t proven to be true.

If you haven’t read it, it’s worth checking out Monday’s Charleston Gazette editorial about climate change, which concluded:

West Virginia’s energy should not be squandered on a shortsighted attempt to protect the status quo, or to discredit science in the public’s eyes, or to vilify the Obama administration’s very reasonable proposal that new coal-fired power plants be required to limit their greenhouse gas emissions. West Virginia should put its energy into getting people ready to work in a world after coal.

Appalachian women put coal on trial

Strong Appalachian women have long been a major force in our region — from Mother Jones to the women who helped lead the Harlan County coal strike, to Kentucky mining widows who fought for tougher safety regulations to folks like Judy Bonds and Maria Gunnoe in the anti-mountaintop removal movement.

Well, today here in Charleston, women from across the region gathered to put mountaintop removal on trial.  It’s an event called the Central Appalachian Women’s Tribunal on Climate Justice, being held all day at the Charleston Woman’s Club down on Virginia Street, not far from the state Capitol complex. The vent is one in a series of new U.S. tribunals, following up on similar events in other countries.

When I stopped by for a while this morning, I heard Beverly May, a family nurse practitioner from Kentucky, give a rundown of the long list of studies by WVU’s Michael Hendryx and his colleagues that point to links between living near mountaintop removal and being more likely to get cancer or be born with birth defects. She told us:

All of the research points to what mountain people have known since strip mining began. It is not possible to destroy out mountains without destroying ourselves. It is not possible to poison our streams without poisoning our children.

The tribunal’s jurists include well-known environmental activist Lois Gibbs. The event continues this afternoon from 1 p.m. to 3 p.m., and there is a live stream of it here. Findings from the tribunal will be presented in June at the Rio +20 U.N. conference on sustainable development in Brazil.

Vandalism in coal country

Photo by Antrim Caskey, Appalachia Watch

There are two disturbing reports out of the coalfields of Southern West Virginia today, providing again more evidence of why political, industry, citizens and labor leaders (and the media) should tone down the “war on coal” rhetoric.

First, the Beckley paper reports:

The remote mountain home of outspoken environmental activist Larry Gibson was burglarized last week, and Gibson, who says he has been the victim of previous acts of targeted violence, suspects his standpoint on mountaintop removal coal mining played a role in the incident. A state trooper investigating the crime isn’t ruling out the possibility either.

Gibson, who was out of town at the time of the break-in, says he doesn’t think it was a run-of-the-mill theft.

“It was well-calculated and risky,” he said.

Among the items stolen from the cabin on Kayford Mountain are a solar panel, 7 D-cell batteries, chainsaws, a miner’s lamp belonging to Gibson’s father, an old Brownie camera, an heirloom bucksaw, and an antique trunk.

The perpetrators smashed windows and pilfered through the house, leaving it “upside down,” says Gibson.

Oddly, coming from an agency that recently professed its interest in being open with the media, the Beckley paper story also noted:

“There wasn’t really any evidence of motivation other than personal gain … Whether it had any backhanded motivation to it or not with his environmental stance, there would be no way to tell until we caught the people who did it,” says Senior Trooper Robinson of the State Police, Whitesville Detachment. Robinson declined to provide his first name.

And the folks from Appalachia Watch report  an incident at their place in Rock Creek, Raleigh County (see above photo):

Four men in a white pick up truck w/ extended cab, temporary plates, drove by our house last night just as it was getting dark and began throwing rocks at our house. Heard one hit the door and they kept lobbing them towards the window, even as I stood there watching them. They broke one window. We called the law.


Citizens seek order to block Loadout mining permit

Lawyers for the Ohio Valley Environmental Coalition and other groups have just filed this legal brief, asking for a temporary restraining order to block a Clean Water Act permit issued by the federal Army Corps of Engineers to Loadout LLC for the company’s Nellis Surface Mine in Boone County, W.Va.

U.S. District Judge Robert C. Chambers in Huntington was already scheduled to hear arguments tomorrow morning on a permit for Alpha Natural Resources subsidiary Highland Mining’s Reylas Surface Mine, and environmental group lawyers have asked the judge to also consider their motion for a TRO against Loadout in a hearing tomorrow.

Stay tuned …

What does Alpha have against scientists?

Well, first Alpha Natural Resources didn’t want any discussion about the growing body of science linking mountaintop removal to human illness discussed in the court case over the Reylas Surface Mine proposed by Alpha subsidiary Highland Mining Co.  In the process, Alpha’s lawyers convinced U.S. District Judge Robert C. Chambers to block testimony about the health studies — and as an added bonus for the company, the pressure of such legal fights appeared to convince WVU researcher Michael Hendryx — the lead scientist examining such issues — that he didn’t want to testify as an expert witness after all.

Now, Alpha’s lawyers want Judge Chambers to block any testimony in the case from Margaret Palmer, a nationally respected biologist from the University of Maryland who is one of the major players in the science examining the water quality impact of coal-mining in Appalachia.  Why? Because Dr. Palmer has dared to speak out publicly about her research and about the policy implications of her scientific findings. Here’s what the company’s lawyers allege in this legal brief filed on Friday:

Highland Mining requests that the Court preclude Plaintiffs from offering expert testimony by Dr. Margaret Palmer because she is a public advocate for Plaintiffs’ cause whose fundamental opposition to all surface mines in central Appalachia, regardless of the mine’s individual characteristics, renders her opinion both untrustworthy and unhelpful to the Court … Dr. Palmer has been an outspoken critic of surface coal mining in central Appalachia for several years and has claimed repeatedly that it is impossible for any surface coal mine in central Appalachia to comply with the Clean Water Act.

Regular Coal Tattoo readers know that Dr. Palmer was one of the major authors of among the most significant scientific papers to date about mountaintop removal, the January 2010 piece in the widely read journal Science, which concluded:

Despite much debate in the United States, surprisingly little attention has been given to the growing scientific evidence of the negative impacts of MTM/VF.

Our analysis of current peer-reviewed studies and of new water-quality data from WV streams revealed serious environmental impacts that mitigation practices cannot successfully address. Published studies also show a high potential for human health impacts.

What everyone may not realize is that Dr. Palmer has nearly 30 years experience studying water quality issues and has more than 150 research publications or collaborate projects on the issues to her name. (You can read her full C.V. online here).  Dr. Palmer is also director of the new National Socio-Environmental Synthesis Center, a National Science Foundation-funded center that aims to bring together scientists from various fields to use science to find answers to many of our world’s most pressing problems.

Keep in mind that, in mountaintop removal cases, Dr. Palmer’s role has been to testify about whether mine operators can really do what they claim to be able to do — rebuild Appalachian headwater streams, recreating the important ecological functions of the waterways buried or mined through by large-scale surface coal mining (see here, here, here, here, here and here for examples of her scientific papers on this issue — a full publication list is online here).

Continue reading…

Bullpush Mountain, public health and EPA attacks

This is how Bullpush Mountain, said to be West Virginia’s first mountaintop removal operation, looked back in 1998 when it was featured in the Gazette’s Mining the Mountains series. Photo by Lawrence Pierce.

It’s been a long time since I wrote about Bullpush Mountain, when the Gazette exposed major flaws (which continue today) in the permitting of mountaintop removal operations in West Virginia. Back then, we wrote:

Bullpush Mountain isn’t a mountain anymore. It’s a flat, grassy meadow that stands out among the wooded hills along the Fayette-Kanawha County line.

More than 25 years ago, Cannelton Industries Inc. chopped the top off Bullpush to get at the coal underneath. The operation, started in 1970, was the first mountaintop removal mine in West Virginia.

Cannelton officials promised that if they flattened out the land, they could more easily develop it. The company drew up plans to turn Bullpush into a brand-new town, complete with churches, schools, shops and a hospital.

None of that ever happened. No schools. No churches or shopping centers.

Unfortunately, Bullpush Mountain wasn’t alone:

Across the Southern West Virginia coalfields, mountaintop removal mining is turning tens of thousands of acres of rugged hills and hollows – nobody knows how many – into flat pastures and rolling hayfields.

A new coal industry advertising campaign declares that mine operators who lop off mountaintops are building “West Virginia’s Own Field of Dreams.”

“Like the Iowa farmer in the movie, ‘Field of Dreams,’ if we build the sites, they will come,” the industry ads say. “And when they come, they will bring with them better jobs, housing, schools, recreation facilities, and a better life for all West Virginians.”

A continuing Sunday Gazette-Mail investigation has found that these predictions have not come true and that, without major regulatory changes, they aren’t likely to come true anytime soon.

Coal industry backers point to a few small mountaintop removal jobs that were turned into homes for the new state prison, a high school and an air strip.

But most coal companies plan to leave giant mountaintop removal mines as flattened-out fields, according to a three-month review of state Division of Environmental Protection mining permits.

In last evening, we learned that the mountaintop removal operation that was performed on Bullpush Mountain wasn’t alone in another respect — it’s among the sites across our state’s coalfields that are illegally polluting our streams. According to this new lawsuit by the West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and the West Virginia Chapter of the Sierra Club:

Today a coalition of concerned groups took action to protect water ways impacted by the inactive and allegedly reclaimed Bullpush Mountain mine in Kanawha and Fayette Counties in southwestern West Virginia. Water monitoring conducted by the groups has revealed that the mine is still discharging dangerous levels of selenium. The groups’ lawsuit alleges that the current land owner, Boone East Development Company, has violated the Clean Water Act due to unpermitted discharges of selenium and conductivity from the “reclaimed” Bullpush Mountain site.

Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, said:

It’s past time for all involved to recognize that ‘reclamation’ means more than just putting the land back in some stable and usable fashion.  Assuring that reclaimed mine sites don’t pollute our water resources continues to be a responsibility of the land owner – whether that be the coal company that mined in the first place or whoever maintains ownership after the mining is done.

Continue reading…

Arch Coal seeks to reopen Spruce Mine case

In the wake of last month’s federal court ruling that the U.S. Environmental Protection Agency lacked legal authority to veto the permit for the Spruce No. 1 Mine, we’ve been waiting for the other shoe to drop … As folks who have followed this closely know that, along with a potential appeal by the Obama administration, the largest strip-mining permit in West Virginia history still faces another crucial legal challenge.

That’s right, the citizen group lawsuit over the Spruce Mine — this version of it, anyway — has never really been heard by U.S. District Judge Robert C. Chambers in Huntington.

Well last week, lawyers for Arch Coal moved things a step closer to possibly having that lawsuit be decided. With this court filing, Arch’s lawyers asked Judge Chambers to lift his stay on the proceedings (not the permit) and make a decision on the company’s longstanding motion for summary judgment. Recall that Judge Chambers had stayed proceedings in this case while EPA processed its veto of the permit, and since then, while another court heard a challenge to that veto.

And important thing to keep in mind here is that Arch and the citizen groups have a “standstill” agreement under which — the D.C. judge’s decision aside — the company can’t move forward with work under the permit without giving the citizen groups 20 days notice. Presumably, that 20 days is to give the citizens time to get into court and have Judge Chambers decide if the situation warrants a temporary order blocking the permit so the entire case could be heard.

As far as I know, Arch Coal has not yet given the citizens that 20-day notice … so stay tuned … But keep in mind that, even if Judge Chambers grants this request from Arch Coal, nothing seems to be happening very quickly. Arch asked the judge to give the government and citizen groups a month to respond to the company’s summary judgment motion on the merits of the permit.