West Virginia Blue
The Best Blogging Community in West Virginia Democratic politics, progressive policies, the good life and free living in Wild, Wonderful West Virginia.
If Congressman Rahall knew the first thing about Central Appalachian mining, he might include some expert witnesses, or citizens whose lives are forever impacted by the very unnecessary (and unpopular) method of mining called mountaintop removal. Poll after poll show that a majority of people across America and across Appalachia oppose mountaintop removal. His constituents seem to agree, as Rahall's district in southern West Virginia is being swiftly depopulated.
But hey, at least the citizens of WV-03 still have it better off than their neighbors in KY-05, the only district with MORE mountaintop removal. (...hint, they are 434/435)
Cindy Rank has generously provided permission to reprint this article from the February Highlands Voice, the monthly newsletter of the West Virginia Highlands Conservancy.
By Cindy Rank
From WV Highlands Conservancy's perspective as the organizational plaintiff in the 1998 Bragg v Robertson litigation, this Environmental Protection Agency (EPA) veto of the Clean Water Act (CWA) 404 fill permit for Spruce #1/Pigeonroost has been long in coming but is much welcomed. Agency personnel deserve a great deal of gratitude for the work they have done to make it happen at long last.
Of course in the midst of celebratory moments we need also pause to remember the late Sibby Weekly who endured far more than any person should have to during the years of fighting for her home. And of course Sibby's husband Jimmy who still lives on his family homeplace in Pigeonroost hollow at the foot of the mountain where mining in Seng Camp (the northern portion of the Spruce #1 permit) continues ... and is not part of the recent veto.
And then there is the 'spin'. Among the more frustrating aspects of the EPA veto is the mileage gained by industry supporters from the misstatements and misleading information intentionally promoted by industry reps, and even our Congressional and state leaders, misinformation that is repeated and published in whatever media outlets are willing to give space to their statements without investigating for further accuracy.
For purposes of this February issue of the Highlands Voice John McFerrin has included some of these details in his concise summary of the veto itself, but allow me to focus on just a few of what I consider the major misleading myths.
Myth #1 - EPA granted then revoked the Spruce #1 permit [Or, as John McFerrin would describe it, the "EPA offered a cookie and then jerked it back"]
FALSE - The Army Corps of Engineers approved the Clean Water Act (CWA) Section 404 (fill) permit for the Spruce #1 coal mine - not EPA.
However, the Clean Water Act designates EPA as lead agency overseeing ALL CWA permits and has given the agency final veto authority over CWA permits - whoever approved them. In the case of the Spruce #1 permit, EPA determined the environmental impacts of the planned mine to be unacceptable and that a veto was warranted by science and the law.
[Again, as John McFerrin has said, industry and its supporters are using a lawyer trick. If you can't win on the merits (your guy is guilty as sin) then complain about the procedure. If they're wrong on the procedure, what do they have left?]
BACKGROUND - The confusion arises from a somewhat unique set of shared authorities established when the Clean Water Act became law in the early 1970's.
i.e. When writing the Clean Water Act Congress incorporated the Army Corps' historic role and authority established under Section 10 of the Rivers and Harbors Act of 1899 (and amended several times after that). Section 404 of the Clean Water Act specifically designates the Corps to be responsible for approving dredge and fill activities in waters of the U.S. and outlines considerations that need to be made when reviewing applications for Section 404 permits.
To assure the basic tenets of the Clean Water Act are enforced properly the Environmental Protection Agency (EPA) was given the authority to oversee ALL activities - including those taken by the Corps under Section 404 of the Act. To accomplish this, the EPA was given the authority to have input to and comment on 404 permit applications, and in the event approval of permits by the Corps were determined to contradict the fundamental protection measures of the CWA, the EPA is authorized to VETO those actions.
Myth #2 - EPA did nothing for three years after the Corps granted the permit. This decision was totally unexpected - It came out of the blue.
FALSE - during the decade long discussion, debate and study of the Spruce#1 application EPA consistently voiced its concerns about the permit, worked with the company and Corps to resolve those concerns, and continued to gather documentation about the damage already being done in the area proposed to be mined. The US Fish and Wildlife Service also continued to voice concerns, but in the end the Corps basically thumbed its nose at those concerns and approved the permit.
BACKGROUND: For the three years following Corps approval of the permit EPA continued to gather the information about the growing body of knowledge about the impacts of mining in the watershed area and how the Spruce permit would contribute to further degradation. The agency carefully followed procedures in Section 404 about preparing documentation and allowing ample time for company and Corps response and public input to the proposed determination to veto the permit, all the while working with the Corps and the company to resolve long standing objections.
Myth #3 - OPTIONS - EPA was never serious about considering alternatives that would allow mining to proceed
FALSE - EPA hired a well known and respected engineering group to suggest alternative mining methods that would reduce the stream impacts of the permit without overly restricting the amount of coal produced from the site. There is no indication that Arch Coal had or has any intention of proposing to use one of the suggestions detailed in the September 2010 Morgan Worldwide report. Nor is the company proposing a different option of its own despite EPA's efforts to work with the company.
As originally proposed the mine was to encompass 3,300 acres [nearly 5 square miles]. The original area was reduced to 2,278 acres as a result of an earlier EIS and input from the same engineering firm but did not reduce the environmental impacts enough to warrant approval - hence the ongoing attempts to consider further changes to the mine plan and EPA's contracting with Morgan Worldwide to suggested alternatives to further reduce the impact area.
Whether the company is unwilling to absorb the additional cost involved with the proposed alternatives, or even if EPA would be willing to accept any of those alternatives as sufficient to justify the permit remains to be seen. [... From my reading of the proposed alternative mine plans, I personally can't imagine any of them could sufficiently reduce the cumulative impacts EPA cited as reasons for veto. ]
BACKGROUND - In addition to the environmental impacts to stream quality and aquatic life cited by EPA as support for its veto and partially listed in John's summary article in this issue of the Voice, the irreversible negative impacts experienced by people depending on those streams and local wildlife, were clear in comments from, meetings with, and testimony by residents of Blair and other nearby communities to EPA during the programmatic Mountaintop/Valley Fill EIS (1998-2005) and to the WV state Governors Task Force on Mountain Top removal and to legislative and Congressional hearings this past decade.
Twelve years later EPA has that much more documentation of stream degradation from these mining operations and negative impacts to fish and other wildlife. ... Twelve years later there is an explosion of individual communities and directly impacted citizens speaking out and relating similar experiences.
The negative impact of these big mines is disproportionately high in the mostly lower income mountain communities of Appalachia. This is true in Blair, and Lindytown and Twilight and Mud and Sharples and Kayford and Whitesville and Edwight and Sylvester and Prenter and so many other small communities throughout southern West Virginia, eastern Kentucky southwest Virginia and parts of Tennessee, one can only hope concern for these environmental justice issues will not end with this one permit.
Tomblin gave a preview of an active agenda for the upcoming Legislature while meeting with reporters at the annual Associated Press Legislative Lookahead in South Charleston.
He spoke about supporting the coal industry against the Environmental Protection Agency, fiscal responsibility in state budgeting, and some changes to education he would like to see in a give-and-take with state media members.
The Legislature convenes on Wednesday in Charleston. Tomblin is scheduled to present his first State of the State address to legislators that evening.
Tomblin took an aggressive stance on behalf of all of West Virginia our state's coal interests:
"Coal has really been the backbone of our economy (and) has created so many jobs over the years," the Logan County resident said. "Coal's been good to us. We realized a few years ago when we passed the Energy Portfolio Act that we needed to be transitioning into more environmentally-friendly sources of energy, and we are doing that in the state of West Virginia.
"However, with this (Obama) administration in Washington, it's been a bumpy time for the state of West Virginia and all the coal-producing states," he said.
The mine permitting process of the federal Environmental Protection Agency (EPA) as it applied to a Spruce Run operation was a target of his comments. "Once they get those permits, that you can go in and just jerk that permit out from under them, that's worrisome," he said.
Asked about the legal action Manchin's administration started to oppose the EPA, Tomblin said, "I will support that lawsuit against what the EPA is planning to do."
Tomblin is continuing to repeat falsehoods about Spruce Run. The original environmental concerns about Spruce Run had never been fully heard--the permit was not taken "out from under them."
Our state Democratic party leaders really need to get more saavy about this. It is self-defeating to beat up on the national Democratic party. Keep needlessly complaining about a Democrat in the White House and more WVians will vote Republican all the way down ticket.
In more promising news:
Tomblin spoke about the importance of a 40-year plan he helped produce in the legislature to pay down unfunded liability in state government in annual installments, and said it was an example of "fiscal responsibility" under his watch.
"We've been very vigilant about making sure that in each year, we've made those payments," he said.
Also:
He proposed a constitutional amendment on Thursday that would create a position of lieutenant governor.
He said he has a "work group" considering how that might work. It might be combined with an existing state executive office such as secretary of state.
"We would create a position that would not cost the people additional money," he said.
While he is now working out of the governor's office in the State Capitol, Tomblin said he is still the senate president and will seek to be retained in that post by his senate colleagues next week. However, the operation of the senate during the session will be handled by another senator, so "I'm not trying to run two branches of government at the same time," Tomblin said.
...
Redistricting will be "a legislative matter," Tomblin said. As acting governor, he said, "My role would be to either sign or veto the bill."
The list of bedrock American laws that Rand Paul is opposed to keeps growing longer. In addition to the Civil Rights Act and the Americans with Disabilities Act, Paul has made it clear that he doesn't like the Clean Air Act either. Last weekend, Paul said that President Obama should leave Kentucky alone, especially when it comes to pollution. "You need to keep the EPA out of our affairs," he called on the president.
Paul prefers to have things "handled on a local level." But unlike Paul, I grew up in Kentucky, and I question this logic.
My elementary school sat on a cliff above an Ashland Oil refinery, and our playground was about eye level with the top of their smokestacks. When the paint on teachers' car started to peel and children started getting sick, the PTA tried to make Ashland Oil do something about it. After some fighting, the company finally installed air monitors on the kickball field - and a few months later the school closed its doors.
What sticks with me still is the way the problem was solved: As far as I can see, Ashland Oil didn't clean up its act at all. Our school shut down instead.
Federal efforts to cut pollution aren't perfect, but they are the last line of defense for places like my hometown. They literally save our lives: the Clean Air Act, for instance, has been documented to prevent hundreds of thousands of premature deaths.
Kentucky has a long dark history of environmental injustice. Amazing groups like Appalachian Voices have been fighting for cleaner water, cleaner air, and better safety rules for miners. They often find local solutions, but they also turn to federal agencies like the EPA and the Mine Safety and Health Administration when they need to.
Paul may call it "federal overreach," but I call it protecting the health of Kentuckians.
Of course, Paul trots out the old saw that cutting pollution kills jobs. But I think Paul is more concerned about ideology than jobs, because if he really wanted to create jobs for Kentucky, he wouldn't turn his back on clean energy and climate legislation. Clean energy jobs are growing 2.5 times as fast as traditional jobs. Paul would rather shoot down federal climate solutions than bring the jobs of the 21st century to his state.
Instead, he is banking on the same old dirty industries, and he seems to think that if children get asthma because they played on a field next to a refinery, that's alright because someone had a job. I am sorry, but I can't accept the misconception that my classmates and I were the collateral damage of some polluter's payroll. Good companies that are following the law and being good neighbors provide jobs every single day.
Companies have found time and again that a clean business model is part of the recipe for a successful company. That is why 5,171 small businesses from across the country are supporting the climate bill. That is why some of the largest companies in the nation are calling on Congress to take action immediately.
The parents I know in Kentucky have no interest in working jobs that sacrifice their children's health. They want to provide for their families AND keep them safe at the same time. This isn't an either or situation. Paul seems to forget this in the midst of his fixation with "federal overreach." I too respect states rights, but states still have to be good neighbors. Local empowerment doesn't give you the right to endanger your residents' health, export pollution into nearby states, or block national solutions to fight global climate change.
If leaders like Paul forget these lessons in responsibility, then I am glad federal agencies like the EPA can step in and remind them.
Between the loss of Sen. Byrd, the heat wave, the Gulf oil spill, the World Cup, and a dozen other major news, I completely missed this yesterday:
The EPA yesterday proposed a new rule that would control emissions of sulfur dioxide (So2) and nitrogen oxide (NOx) in 28 states - including West Virginia - because they drift to other states and form fine air-borne particulates and ozone.
For weeks, environmental groups have been pressuring to defeat Alaska Senator Lisa Murkowski's resolution to weaken the EPA's ability to regulate greenhouse gases under the Clean Air Act. Our junior senator was at the heart of such pressure, as he was a key swing vote in deciding whether Murkowski's resolution would gain favor in the senate.
Rockefeller introduced a separate bill that would have more narrowly limited EPA's authority by imposing a two-year time-out on EPA climate rules for stationary sources, but he has said he had trouble advancing the measure.
In other words, the Rockefeller bill would give a two-year grace period for any EPA environmental regulations to take effect. The White House, thankfully, has promised to veto the Murkowski disapproval resolution, should it somehow pass in the senate.
At stake here is Senator Rockefeller's unfortunate stance that the coal industry and other carbon-producing companies should not be regulated at the federal level (e.g., very little or no regulation) and his wrongheaded support of an anti-environmental agenda. Rockefeller needs to rescind his support for the Murkowski amendment and withdraw his alternate, weak bill that stifles the EPA's ability to protect communities from industry-created environmental destruction. Rockefeller's antiquated stance here is anything but progressive, unfortunately.
If the EPA hearing permit is allowed for the Spruce #1 operation, that mine, owned by Arch Coal, would be the largest mountaintop removal site in West Virginia.
Although I attended that hearing, I chose not to speak publicly because I'm not from Logan or Mingo, so I really didn't think I had enough "skin in the game" to risk getting screamed at jeered down, and possibly beaten to a pulp. And at the time I wasn't certain about the science or the effect that surface mining has on the rest of the state. I am now. And I will put my comments into the public record because I do have a vested interest in stopping mountaintop removal.
Although I love West Virginia's scenery and the wildlife, it's not enough to warrant really getting actively involved to the point of risking my own safety. However, I've done more than a little research which compels me to at least add my comments to the debate. Not only that, I've chosen to share what I've found with the readers of WVA BLUE with sincere the hope that you'll be persuaded to join with me and add your comments to the EPA record as well.
I know this is a long article, and I apologize for that. If at any point you decide to cut to the chase and post your comments in opposition to the permit you can scroll to the bottom of this report where detailed instructions from the EPA website are posted, along with relevant links. But before you do so, you may wish to utilize the info found by clicking on the embedded links to scientific peer reviewed studies below. The EPA will hopefully do its job and protect the lives of our coalpatch neighbors rather than cave to moans and groans of atsroturfing profiteers most of whom don't even live in this state.
The deadline for filing is June 1.
I'll start out by explaining that my experience at the Spruce #1 EPA hearing was quite different from the one held at the same venue months earlier by the Army corps of engineers. Ken Ward Jr. only got around to telling a very small part of that story when he reported:
Tuesday's hearing was far more orderly than an October session run by the U.S. Army Corps of Engineers. At that event, mining supporters yelled and jeered repeatedly whenever any mountaintop removal critics or opponents attempted to speak.
Unfortunately he failed to report that the Charleston police actually ejected anti-mountaintop removal folks who were just trying to get into the venue.
When I tried to attend that meeting I was jostled outside to the point where my camera was damaged. Besides the many many brand-new looking reflective mining coveralls and commercially printed signs (both of which looked suspiciously like astroturf rather than grassroots), what I also witnessed was carloads of people who weren't wearing pro MTR gear stopping in front of the Civic Center, then driving away without getting out once they saw the mayhem caused by what I suspect were mostly overweight bused-in astroturfing mine equipment salesmen dressed up to look like miners. Primarily because their hands stood out as even more soft and plump than their guts under their brand new jumpsuits.
The Army Corps of Engineers and the Charleston Police let that deal get completely out of hand. And because of it, and a number of other similar incidents, the word has gotten out to the anti-surface mining community that even if you came early and tried to speak out, you would be yelled down. The Coalpatch Gazette and Daily Wail failed miserably to report what happened outside that hearing, and unfortunately the upshot of that earlier violence was that people whom I personally know determined that it would be another a waste of time to drive all the way from Logan and Mingo only to get shouted down and threatened.
You can thank the U.S. Army Corps of Engineers for that travesty. Whose own pollution, by the way, was directly responsible for the only application of a Superfund site cleanup in the southern part of WV. Some "guardians", eh?
Anyway, one of the major discoveries which compels this resident of Kanawha County to get involved is the fact that since the widespread proliferation of mountaintop removal scientific studies have been done which reveal that coal operations cost all of West Virginia far more than they plug back into our economy primarily due to the illness and premature deaths it causes to families living near those operations.
This is going to be a really hard one for the science-driven Obama EPA to ignore. They just announced new air quality standards in line with most recent smog science, now how will the EPA react to established water quality threats from mountain top removal?
What's wrong with this picture - a person is poisoned and the manufacturer doesn't have to tell medical personnel what it was? And worse, the manufacturer doesn't think they have an ethical obligation?
Last year, a Colorado nurse fell seriously ill after treating a worker involved at a chemical spill at a gas-drilling site. The man, who later recovered, appeared at a Durango hospital complaining of dizziness and nausea. His work boots were damp; he reeked of chemicals, the nurse said.
Two days later, the nurse, Cathy Behr, was fighting for her life. Her liver was failing and her lungs were filling with fluid. Behr said her doctors diagnosed chemical poisoning and called the manufacturer, Weatherford International, to find out what she might have been exposed to.
Weatherford provided safety information, including hazards, for the chemical, known as ZetaFlow. But because ZetaFlow has confidential status, the information did not include all of its ingredients.
Mark Stanley, group vice president for Weatherford's pumping and chemical services, said in a statement that the company made public all the information legally required.
"It is always in our company's best interest to provide information to the best of our ability," he said.
Behr said the full ingredient list should be released. "I'd really like to know what went wrong," said Behr, 57, who recovered but said she still has respiratory problems. "As citizens in a democracy, we ought to know what's happening around us."
from this much longer WaPo article on secret chemicals.
The Legislature should be looking at forcing disclosure of drilling (and other) chemicals until the EPA gets its act together on this. As a bare minimum, full disclosure should be required in at least acute exposure situations like this and any release into ground or surface water.
- Speaking at Massey's Christmas extravaganza Saturday, Don Blankenship got into the holiday spirit by referring to Senator Byrd as "naive" and said EPA stand for 'Equal Poverty for All."
-Steve Roberts of the West Virginia Chamber of Commerce can't understand why our senators think it's "beyond foolish" to hold health care reform hostage for the coal barons.
This just in EPA chief Lisa Jackson is explaining in an unprecedented news conference that GHG's are manmade and should and will be regulated by EPA. Great news!
DEP Secretary Randy Huffman says he is frustrated by the Environmental Protection Agency stepping on his agency's toes.
EPA officials were in Charleston last week. The EPA is raising concerns about several mountaintop removal permits, including two in West Virginia, but Huffman says all mining-related activities are already heavily regulated by the DEP.
"We are the environmental regulators here in West Virginia," he said. "We are the ones on the front line here. We are the ones responsible for protecting the environment. We have a very rigorous and robust regulatory program that is basically being challenged.
[snip]
Huffman says the sticking point is that the EPA believes that creating valley fills-the practice where the tops of the mountains are removed and put into a nearby valley-contribute to stream degradation. But Huffman says valley fills are essential to mountaintop removal, as well as the state's economy.
"Mainly what we're concerned about as regulators is the ability to develop land after mining," he said. "You need valley fills if you're going to have a viable post mining economy. You need flat land. And in order to have flat land you need to have valley fills, and one of our biggest concerns is that EPA is wanting to reduce the size and number of valley fills in Appalachia."
The EPA has avoided making any kind of blanket declarations on mountaintop removal, and has said only that future permits will be closely scrutinized.
Groups Charge that Mountaintop Removal Coal Mining Disproportionately Impacts Low-Income Americans
Petition Seeks Greater Attention to Environmental Justice Considerations in Review of Mining Permits
Washington, D.C.: Today a coalition of Appalachian residents and community organizations submitted a petition to the Environmental Protection Agency (EPA) citing the need for the agency to address the environmental justice tragedy of mountaintop removal mining in Appalachia. The petition urges EPA to incorporate environmental justice considerations into its review of pending applications for mountaintop removal coal mining permits, among other actions. The petition outlines how EPA has the responsibility under Executive Order 12898 to address the environmental justice impacts of mountaintop removal mining, and has the authority under the Clean Water Act, the Clean Air Act, the National Environmental Policy Act, and other laws, to do so.
"The worst polluters have always targeted the communities least able to resist their abuses and protect their homes and families," said Vernon Haltom of Coal River Mountain Watch. "In Appalachia, coal companies are oppressing residents while they suck the wealth out of communities."
On September 30, 2009, EPA announced that it is undertaking a coordinated review of 79 applications for mountaintop removal mining permits in conjunction with the U.S. Army Corps of Engineers. Today's petition asserts that these, and all future applications for mountaintop removal coal mining permits, should be scrutinized by EPA to identify and address any disparate impacts the proposed mining may have on vulnerable, economically disadvantaged communities. The petition also asks EPA to create an environmental justice plan and strategy for the region, and to ensure a meaningful opportunity for public participation by the Appalachian coalfield communities in each individual permit review and in EPA's overall permit review process.
"The people of the Appalachian coal fields are among the nation's poorest. Many of us struggle with persistent poverty and sub-standard housing. To impose the impacts of coal on our already vulnerable population is an environmental justice issue that our nation has conveniently ignored for too long. We are forced to live with the ravaged landscape, polluted air, flooding and contaminated water. Clean water is a basic human right and it's been taken from us," said Teri Blanton of Kentuckians for the Commonwealth.
"The Appalachian people have long suffered unduly for the sacrifices we have made to fuel this nation and its progress," said Kathy Selvage of Southern Appalachian Mountain Stewards. "I believe if the EPA folks visited in the Appalachian region for awhile, they would find themselves standing in the West Wing advocating for an end to mountaintop removal coal mining immediately to help us save our ancient mountains and the place we call home."
View the petition, filed by groups including: Coal River Mountain Watch, Kentuckians For The Commonwealth (KFTC), Ohio Valley Environmental Coalition (OVEC), Sierra Club's Environmental Justice and Community Partnerships Program, Southern Appalachian Mountain Stewards (SAMS), Statewide Organizing for Community eMpowerment (SOCM), and the Appalachian Center for the Economy and the Environment.
"The communities of Appalachia have suffered appalling damage from mountaintop removal mining because of the remoteness of the region and the poverty of the people living here. It is past time to acknowledge the horrendous impacts of all forms of mountaintop removal mining on the people of Appalachia. Our communities have struggled long enough. We need action now," said Cathie Bird, coalfield resident and member of Statewide Organizing for Community eMpowerment
"We urge the EPA to scrutinize all mountaintop removal mining permits through the lens of environmental justice," said Janet Keating, Executive Director of the Ohio Valley Environmental Coalition, based in Huntington, WV. "People living with mountaintop removal are paying too high of a price for the nation's so-called 'cheap' energy, including damage to their health and the contamination of their water."
Due to its vital charge under Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations," the EPA must take immediate steps to recognize and address the environmental justice effects of mountaintop removal mining, a destructive practice that is occurring at a high and destructive rate and only in the economically disadvantaged communities of Appalachia. The disproportionate environmental destruction from mountaintop removal clearly falls within the purview of the Executive Order.
"The environmental justice claims in this petition are not an afterthought," said Leslie Fields, Sierra Club's National Environmental Justice and Community Partnerships Director. "Proper review of permits will only occur when the EPA abides by the environmental justice executive order and all other applicable laws. The affected communities in Appalachia deserve no less than full compliance and enforcement by the EPA."
When the Environmental Protection Agency declared this year on September 11 that all pending mountaintop removal mining permits in four Appalachian states stood in violation of the Clean Water Act and required further review, Lora Webb didn't have time to join in any celebrations. As she and her husband, Steve, a coal miner, packed up their possessions and left his family's ancestral property outside Lindytown, West Virginia, Lora was more concerned about finding a place to sleep that night.
Copyright 2011 West Virginia Blue
Site content may be used for any purpose without explicit permission unless otherwise specified.
This site exists thanks to financial support from BlogPAC, dedicated volunteers and participation by members of this community. The views expressed at West Virginia Blue belong solely to their respective authors.
DEP Secretary Randy Huffman says he is frustrated by the Environmental Protection Agency stepping on his agency's toes.
