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This post co-written by Mary Anne Hitt, Deputy Director of the Sierra Club's Beyond Coal Campaign
Very big news out of the Environmental Protection Agency (EPA) this morning - the agency has determined that all 79 mountaintop removal mining permits submitted to them for review by the Army Corps of Engineers would violate the Clean Water Act. After eight long years of rubber-stamp permits being issued during the Bush Administration, this is one of the most dramatic and encouraging actions yet by the Obama Administration, and marks a welcome return of the rule of law to the coalfields of Appalachia.
Mountaintop removal - a devastating form of coal mining that involves blowing up mountains and dumping the former mountaintops into neighboring valleys, burying streams - is governed by a patchwork of laws and federal agencies. Permits to bury streams with mining waste are initially issued by the Army Corps of Engineers, but EPA has ultimate oversight and may veto Corps-issued permits if they fail to comply with the Clean Water Act.
ROCKEFELLER FIGHTS FOR WEST VIRGINIA SURFACE MINING
Rockefeller challenges the EPA for requesting the Army Corps of Engineers to revoke a West Virginia surface mining permit
Washington, D.C.-Senator Jay Rockefeller pressed Environmental Protection Agency (EPA) Administrator Lisa Jackson on the EPA's request to suspend or revoke the already approved surface mining permit for the Spruce Number 1 Mine in Logan County. Senator Rockefeller sent a copy of the letter to President Obama, including a personal note emphasizing its importance.
"Retroactively reviewing lawfully issued permits is an affront to the West Virginia coal industry which is trying to play by the rules. It is fundamentally unfair to change the rules for a permit issued over two years ago and this letter raises serious questions about the EPA's approach," said Senator Rockefeller.
"I am a long time supporter of surface mining operations when done in accordance with the law. Surface mining is vital to the economy of southern West Virginia and our nation's electricity needs and it certainly can be carried out in a way that addresses environmental impacts. We must not lose sight of the fact that coal meets half of our nation's electricity needs and powers millions of American homes and businesses and will for decades into the future. For generations, coal has given the American people the highest standard of living in the world and today much of it comes from rigorously reviewed and safely-run operations in West Virginia. Calling previously approved permits into question needlessly threatens not only the economic stability of many West Virginia communities, but also our nation's energy security."
* The Spruce Number 1 Mine permit was reviewed by the Corps of Engineers for nearly ten years before being approved in January 2007, and has been active for over two years.
* To satisfy initial EPA concerns, the final permit reduced the acreage of the permit by 835 acres or 27 percent and excess spoil by 150 million cubic yards, a 57 percent decrease.
* EPA Region III sent a letter on September 3, 2009 to the Army Corps of Engineers, asking the Corps to reevaluate the Spruce 1 Mine permit.
* The Spruce Mine Permit is not a pending application to be considered as part of the Memorandum of Understanding (MOU) that the Corps of Engineers entered into with the EPA (as well as the Department of Interior) in June 2009.
* Reopening a permit over two years after it was lawfully issued creates an unacceptable level uncertainty for all previously issued permits, a result completely contrary to the goals of the MOU.
I received an email response to my recent diary on "What I'd like to know about W.Va. DEP." Here's a paraphrased version of their email. I pass it along as an anonymous unverified tip.
The Office of Legal Services (OLS) will have only 4 attorneys left after one of the attorneys retires at the end of July. As recently as 1-2 years ago, there was a staff of 10 attorneys in that department. The Chief of the OLS has asked to replace positions as people leave, but has not been given permission. People who have been there a while say this office was even bigger (15? attorneys) in the past.
Also, three of the seven spots on the Surface Mine Board are vacant (two from June retirements). Gov. Manchin was not announced any plans for filling these spots yet.
I certainly welcome clarification from the W.Va. DEP if any of this information is inaccurate.
I've heard several times in passing that the West Virginia Department of Environmental Protection is far from fully staffed. I'd like to know, is this true?
How many unfilled positions are there at the W.Va. DEP? What is the history of unfilled positions in the department?
The more I learn about Secretary Randy Huffman's DEP, the more I can see why some people suggest turning over its operation to the Federal Environmental Protection Agency.
The EPA visited the Coal River Valley to meet with the coal industry yesterday morning when activists from Climate Ground Zero unveiled a large banner that said "EPA stop MTR" at Massey Energy's Edwight mountaintop removal mine. Five people were arrested and work ceased on the site for the day as Massey searched fruitlessly for additional protesters. The banner was up for two hours was visible from the highway.
You can find a full report from activist on the scene at Climate Ground Zero (including a picture of the banner).
Ken Ward, Jr. has more details on the legal fights around protests, including the implications of two journalists being arrested in: Protests against Massey continue ...
The really amazing part is the reason why the permit is denied (emphasis mine):
In a move that signals the start of the our clean energy future, the Environmental Protection Agency's Environmental Appeals Board (EAB) ruled today EPA had no valid reason for refusing to limit from new coal-fired power plants the carbon dioxide emissions that cause global warming. The decision means that all new and proposed coal plants nationwide must go back and address their carbon dioxide emissions.
"Today's decision opens the way for meaningful action to fight global warming and is a major step in bringing about a clean energy economy," said Joanne Spalding, Sierra Club Senior Attorney who argued the case. "This is one more sign that we must begin repowering, refueling and rebuilding America."
"The EAB rejected every Bush Administration excuse for failing to regulate the largest source of greenhouse gases in the United States. This decision gives the Obama Administration a clean slate to begin building our clean energy economy for the 21st century," continued Spalding
The decision follows a 2007 Supreme Court ruling recognizing carbon dioxide, the principle source of global warming, is a pollutant under the federal Clean Air Act.
Now there will be more pressure than ever from King Coal interests to fund their requests for technology development for so-called clean coal. Here are three things to keep in mind.
1. There is no proven technology for large scale carbon sequestration.
2. Mining coal is environmentally damaging, and, with current practices, a social and economic disaster for coal-mining communities as well.
3. Even with proposed clean coal technology, burning coal creates tons of toxic waste, with huge disposal problems.
Let's put it this way, if "clean coal" was a wonderful thing, would King Coal need to spend millions of dollars promoting it?
This is a piece of news I almost hate to report for fear of jinxing it. Just how huge would it be to have someone already well-informed about Mountaintop Removal appointed as head of the Environmental Protection Agency?
President-elect Barack Obama is looking at possibly appointing Robert F. Kennedy Jr. to head the Environmental Protection Agency, according to sources familiar with the process, though he is eying several other prominent environmentalists as well.
Kennedy founded and now chairs the Waterkeeper Alliance, which promotes water quality in the U.S. and abroad, while simultaneously serving as an attorney at the Natural Resources Defense Council and a professor at Pace University School of Law.
Chair Boxer had written and asked for a copy of the EPA finding on greenhouse gases (GHG). EPA determined that GHG posed a significant threat to human health. Bush's lawyer GonzalesMeirs Felding now says that the White House controls the document, and since it is a work product they will not release it publicly.
Senate EPW Committee Rules for Business Meetings: Two from the minority needed for a quorum. All the Republicans boycotted Thursday.
Inhofe (OK), Warner (VA), Voinovich (OH), Isakson (GA), Vitter (LA), Barasso (WY), Craig (ID), Alexander (TN), Bond (MO)
Any way to connect with the Virginia or Ohio community to press John Warner (202) 224-2023 and George Voinovich (202) 224-3353? Senators pay more attention to someone from their own state. Doesn't it look bad to side with Chair James Global Warming is a Hoax Inhofe? (To quote Boxer, "Elections do have consequences.")
Does anybody think that The Clean Air Act is not the correct tool to deal with the problem? Does anybody think there is no problem? Does anybody think that the President's policy preference trumps science?
The country's fourth-largest coal producer, Massey Energy Co., has agreed to a $30 million settlement with the government over allegations that over seven years it routinely polluted hundreds of streams and waterways in West Virginia and Kentucky with sediment-filled waste water and coal slurry.
Under the agreement with the Environmental Protection Agency, Massey Energy, headquartered in Richmond, Va., will pay $20 million in civil penalties and invest an additional $10 million in pollution control improvements at its 44 mines and coal facilities in the two states and in Virginia, the EPA and Justice Department were announcing on Thursday.
The agreement settled a complaint filed by the EPA in May 2007 alleging that the company violated the federal Clean Water Act on at least 4,500 occasions between January 2000 and the end of 2006 by discharging mining waste and sediment - including hazardous metals - into hundreds of streams and waterways and failing to control spills of coal slurry during its mining operation.
Some of the waste water discharges were more than 10 times the amounts allowed by state permits, the EPA said.
[snip]
The maximum penalties facing the company for the thousands of violations and days when permits were exceeded could have been as high as $2.4 billion, according to the EPA.
The pollution "destroyed streams, destroyed fish habitat. There was definitely an environmental impact here," Granta Nakayama, the assistant EPA administrator for enforcement, said in an interview. "We thought it was very serious."
The $20 million civil penalty is the largest ever for violations of the Clean Water Act, said Nakayama. "This is a landmark settlement for the environment, and raises the bar for the mining industry."
As part of the agreement, Massey promises to invest $10 million to develop and implement new procedures and tracking systems to prevent waste water discharges and slurry spills, and allow third-party audits of its pollution prevention program. The company also agrees to set aside 200 acres of riverfront land in West Virginia for conservation and protection against future mining.
Ronald Tenpas, head of the Justice Department's environment and natural resources division, said the measures agreed to by the coal company "represent a significant step forward in the way that mining facilities currently address Clean Water Act compliance."
The new pollution prevention measures are expected to keep an estimated 380 million pounds of sediment and other pollutants from Massey's mining operation out of the three states' waters each year.
In summary, the settlement is $20 million in cash fines, $10 million in improvements in mine conditions they should have made long ago, plus a conservation easement on 200 acres of West Virginia riverfront property.
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