By Matt Wasson, Huffington Post
A month ago, before the nation’s attention was drawn to the tragedies
at the Upper Big Branch Mine in West Virginia and the oil rig off the
Louisiana coast, the EPA issued a blockbuster
announcement about a strict new guidance for the permitting of mountaintop removal mines in
Appalachia. The announcement left many people — reporters, politicians
and the general public alike — confused whether or not the EPA had just
put an end to mountaintop removal. The announcement generated headlines
ranging from a fairly modest “E.P.A. to Limit Water Pollution From
Mining” in the New
York Times to “New regulations will put an end to mountaintop
mining?” in the
Guardian.
Certainly at the press conference EPA Administrator Lisa Jackson used
some strong language:
“Coal communities should not have to sacrifice their
environment or their health or their economic future to mountaintop
mining. They deserve the full protection of our clean water laws.”
On
a recent trip through eastern Kentucky, set up by our good friends at Kentuckians for the Commonwealth, the answer
to whether mountaintop removal in Appalachia has come to an end was
abundantly obvious.
The photo of a new active mountaintop removal mine looming above
Route 23 in Pike County, Kentucky, at right, tells the story.
(All photos in this post were taken on April 18th in Kentucky: Here’s
a link a to flickr photo set from that trip.)
To the extent that some in the media overstated the impact of the
EPA’s new guidance, they can be forgiven. During the press conference,
Jackson herself said, “You’re talking about no or very few valley fills
that are going to meet standards like this.”
Valley fills are the typical disposal sites for the waste that is
generated when coal companies blow the tops off mountains to access thin
seams of coal. As community activist Judy Bonds of the organization Coal River Mountain Watch describes it,
“A valley fill is an upside down mountain turned inside out.” Most — but
not all — mountaintop removal mines require valley fills.
But Jackson was also very clear that this was not a blanket ban on
mountaintop removal permitting and that the guidance would not apply to
permits that had already been granted. The standards Jackson said would
lead to “no or very few valley fills” establish limits on the
permissible level of stream water conductivity. Conductivity is a
measure of salt — and an indicator of metals including toxic and heavy
metals — in water. Remember the experiment where you put salt in a glass
of water to make it conduct electricity and light a bulb?
A
plethora of recent scientific research has shown that conductivity
higher than about five times the normal level downstream from valley
fills is associated with severe impairment of the ecological communities
in Appalachian headwater streams. The photo to the right that I took
below a valley fill in Magoffin County, Kentucky, illustrates the
trouble these standards create for coal companies. According to a huge
compilation of scientific studies that the EPA simultaneously
released with their guidance, conductivity levels below Appalachian
valley fills average around 10 times normal levels. The bright orange
water coming out of this valley fill indicates enormously high levels of
iron, which in turn suggests both high conductivity levels and high
levels of toxic and heavy metals regulated under the Clean Water Act.
To be sure, the EPA’s move is a big first step that provides
immediate protection to Appalachian families threatened with new
mountaintop removal permits above their homes. It’s a tourniquet that
will stop the hemorrhaging, but here are five reasons why this guidance
doesn’t immediately or permanently put an end to mountaintop removal:
- The EPA’s action will not affect permits that have already been
issued. Moreover, an excellent
piece of reporting by Charleston Gazette reporter Ken Ward revealed
that those existing permits will allow some companies to continue
mountaintop removal operations without a hitch for the next couple of
years.
- Not all mountaintop removal mines require valley fills and coal
companies are already using loopholes by which they can obliterate miles
of streams without the need to obtain a valley fill permit. The
million or so acres of wholesale destruction that coal companies drove
through a narrow loophole in the Surface Mine Control and Reclamation
Act since 1977 is testament to their skill and creativity at exploiting
loopholes.
- Some valley fills will still be allowed under this guidance and the
EPA even provided a set of “best practices” by which companies can do
mountaintop removal in a manner consistent with it. Moreover, there are
a number of recent cases where coal companies went ahead and
constructed valley fills without
even bothering to obtain a permit.
- While the guidance takes effect immediately, it is a preliminary
document released in response to calls from coal state legislators and
coal companies for greater clarity on how the EPA was basing its
decision whether to grant a valley fill permit for an Appalachian
surface mine. The EPA plans to initiate an extended public comment
period before the guidelines will be finalized.
- An agency guidance document is different from a formal rule and can
be easily overturned by a new administration. Even if this guidance
proves to be effective in curtailing mountaintop removal, environmental
and community advocates still need to ask what happens when a
hypothetical President Palin enters the White House in January of 2013
or 2017.
There are any number of laws and regulations that affect surface
mining, and so there is no single mechanism to ensure mountaintop
removal is stopped permanently. But the first and most important step is
for Congress to pass a strong law that prohibits the dumping of mine
waste into streams.
In 2002, Representative Frank Pallone of New Jersey introduced just
such a bill called the Clean Water
Protection Act (H.R. 1310). Pallone, together with Republican
Christopher Shays, introduced this bipartisan bill in response to the
Bush Administration’s catastrophic “fill rule,” which made it easier to
permit mountaintop removal mining and for coal companies anywhere to
dump waste into streams. Since then, people and organizations across
Appalachia have supported Pallone’s bill by carrying a simple message to
universities, church groups and Rotary Clubs across America: They’re
blowing up our mountains and there oughtta be a law!
Over the past eight years, the nationwide organizing efforts led by
groups in Appalachia have generated a remarkable 170 co-sponsors of the
Clean Water Protection Act — more than almost any other bill before
Congress. Unfortunately, the bill continues to be held up in the House
Transportation and Infrastructure Committee, with West Virginia
Congressman Nick Rahall recently claiming
credit in a West Virginia newspaper for bottling it up.
If Rahall’s contention is true, it’s a powerful testament to the
level of influence he has accumulated, given that the bill has more
cosponsors than any other of the 323 bills currently before the
Transportation and Infrastructure Committee. More importantly, Rahall
does not actually have the power to prevent the bill from being heard
except through his influence over Chairman James Oberstar of Minnesota,
who is the only one with the actual power to decide whether the bill is
brought up in his committee.
It’s particularly unfortunate that House Democratic leaders and
committee chairs like Oberstar would give Rahall so much power over
national policy, given how poorly his own constituents have fared under
his leadership. After 33 years in office, Rahall’s district ranked 434th
out of all 435 Congressional districts in Gallup’s recently-released 2009
well-being index rankings (see map below).
The only district that ranked lower was Hal Roger’s neighboring
district in eastern Kentucky. Notably, Rogers’ is the only district that
has suffered more destruction from mountaintop removal mining than
Rahall’s.
A big question in the wake of the tragedy at Massey Energy’s Upper
Big Branch mine is whether the obeisance of coal state legislators
toward the coal industry will change after the disaster. Traditionally,
the pandering of Congressman Rahall and Senator Rockefeller toward Big
Coal has been almost embarrassing to watch — kind of like witnessing an
overly-exuberant public display of affection on a park bench. But when
it comes to the safety of the guys in the hardhats, these gentlemen
strike a very different tune.
Given that the same company, Massey Energy, is by far the largest
operator of mountaintop removal mines, was assessed the largest penalty
in the history of the Clean Water Act, and has a record of environmental
violations to which their horrible safety record pales in comparison,
these legislators have a unique opportunity to lead their constituents
in a new direction. And Senator Byrd of West Virginia has paved the way.
One of the most under-reported elements of the EPA’s announcement was
that Administrator Jackson specifically mentioned the EPA had worked
with Senator Byrd to develop their new guidelines. She would not have
said that without explicit approval from Senator Byrd. While Byrd has
not explicitly called for an end to mountaintop removal or co-sponsored
legislation to do that, his leadership in promoting a more thoughtful
and reasonable view on climate and the future of coal in his state
represents a sea change from the public statements of statewide elected
officials over the past few decades. Rahall and Rockefeller would serve
their constituents and their country far better if they followed Byrd’s
lead.
Is Passing a Law in this Polarized Congress Realistic?
More important than the enormous number of cosponsors that
legislation to stop mountaintop removal enjoys is the fact that the
support is bipartisan. Immediately following the EPA’s announcement,
Senator Lamar Alexander, Republican of Tennessee, said in a
press release:
“The new EPA guidelines are useful in stopping some
inappropriate coal mining in Appalachia but Congress still needs to pass
the Cardin-Alexander legislation that would effectively end mountaintop
removal mining.”
Alexander, together with Senator Ben
Cardin of Maryland, introduced the Appalachia
Restoration Act (S. 696) last year, a Senate companion to the Clean
Water Protection Act designed to eliminate mountaintop removal (or at
least permanently curtail it — we’ll see what the final language says
after mark-up). That bill got a boost the same week of the EPA
announcement when coal-state Senator Sherrod Brown of Ohio announced
he would become the 11th co-sponsor of the bill.
Whether the Senate bill can survive the committee mark-up process in a
form that Appalachian citizens groups can support remains to be seen,
however. The Nashville
Tennessean recently published an editorial
that gave voice to the concerns many coalfield citizens have about
forms of mining that may not be covered by the Senate bill, particularly
cross-ridge mining. Cross-ridge is a type of mountaintop removal mining
that requires little or no valley fill and is based on the assumption
that a mountain can be put back more or less how it was after it’s been
blown up — kind of like putting Humpty
Dumpty back together again.
The
photo to the right illustrates one of many problems with the theory
that mountains can be put back together without causing major ecological
degradation. While the type of mining shown in the photo would not be
classified by state agencies as mountaintop removal (only part of the
ridgeline has been removed and there is no valley fill at the headwaters
of this stream), the impact of this mining on water quality is
indistinguishable from the impact shown in the previous photo below a
valley fill.
Some insiders have also expressed concern that the EPA’s strict new
guidance will take the wind out the sails of the campaign to pass a law,
but from the perspective of Appalachian groups that have been working
to ban mountaintop removal for decades, that concern is misplaced. The
citizens of Appalachia have led this fight from the beginning, and have a
much more vested interest in making these protections permanent than
any group in Washington, D.C.
It may be that some big environmental groups that have only recently
made mountaintop removal a priority will move on to other priorities
once the Administrative decisions are played out — and make no mistake
that the contributions of those groups over the past few years in
pressuring the Obama Administration to take action were exceedingly
welcome and timely. But it was not the Big Greens that made mountaintop
removal a national issue or whose organizing in communities across
America has generated such broad bipartisan support of the Clean Water
Protection Act and Appalachia Restoration Act.
The people of Appalachia aren’t sitting around waiting for beltway
insiders to tell them whether or how to pass a law, they’re just doing
it. The legislative effort is led by the Alliance for Appalachia, an
alliance of 13 local and regional organizations that formed
several years ago with the mission of ending mountaintop removal and
bringing a prosperous new economy to the Appalachian coalfields that is
based on sustainable industries.
The Alliance for Appalachia represents by far the greatest number of
people impacted by mountaintop removal mining, and the alliance is
composed of some organizations that have been fighting Appalachian strip
mining for decades. The battle to end mountaintop removal will not be
over until the Alliance for Appalachia says it is, and I’m confident
that won’t happen until, at a minimum, President Obama signs a law
banning the practice.
So What’s Next?
There is a window of opportunity right now to pass a strong law that
will rein in mountaintop removal permanently. Also, with coal demand
down dramatically due to the recession, now is the time to begin
replacing mountaintop removal coal with aggressive energy efficiency and
renewable energy policies in states like North Carolina, Georgia and
Virginia that are most dependent on this source of coal.
From a local perspective, more delays, half-measures and uncertainty
about the future of mountaintop removal will only lead to a myopic
approach to rebuilding the Appalachian economy and bringing new jobs and
new industries to the region.
And from a global perspective, at a time when America is finally
getting serious about addressing climate change and moving toward a 21st
century energy future built around renewable energy, isn’t it absurd
that we’re still fighting to stop the wholesale destruction of the most
biologically diverse forests and streams on the continent in order to
mine climate-destroying coal? Can we really address climate change if we
can’t even stop mountaintop removal?
For people around the country that want to see mountaintop removal
end — and that should be anyone concerned about climate change, human
rights, clean water or endangered species — a great place to start is by
telling your
Senators and Representatives that the time to pass legislation to
end mountaintop removal is now. There are plenty of tools on
the web to make it easy.
Let’s keep up the momentum, pass a strong law, and relegate
mountaintop removal to its rightful place as just another tragic episode
in American history books.
Matt Wasson is the program director of Appalachian Voices, a grassroots environmental advocacy group based in Boone, N.C.
