Appalachia Is Paying Price for White House Rule Change
By Joby Warrick
Washington Post Staff Writer
Tuesday, August 17, 2004; Page A01
http://www.washingtonpost.com/wp-dyn/articles/A6462-2004Aug16.html
Last of three articles
BECKLEY, W.Va. -- The coal industry chafes at the name -- "mountaintop
removal" -- but it aptly describes the novel mining method that became
popular in this part of Appalachia in the late 1980s. Miners target a
green peak, scrape it bare of trees and topsoil, and then blast away
layer after layer of rock until the mountaintop is gone.
In just over a decade, coal miners used the technique to flatten
hundreds of peaks across a region spanning West Virginia, eastern
Kentucky and Tennessee. Thousands of tons of rocky debris were dumped
into valleys, permanently burying more than 700 miles of mountain
streams. By 1999, concerns over the damage to waterways triggered a
backlash of lawsuits and court rulings that slowed the industry's growth
to a trickle.
Today, mountaintop removal is booming again, and the practice of dumping
mining debris into streambeds is explicitly protected, thanks to a small
wording change to federal environmental regulations. U.S. officials
simply reclassified the debris from objectionable "waste" to legally
acceptable "fill."
The "fill rule," as the May 2002 rule change is now known, is a case
study of how the Bush administration has attempted to reshape
environmental policy in the face of fierce opposition from
environmentalists, citizens groups and political opponents. Rather than
proposing broad changes or drafting new legislation, administration
officials often have taken existing regulations and made subtle tweaks
that carry large consequences.
Sometimes the change hinges on a single critical phrase or definition.
For example, when the Environmental Protection Agency announced
proposals last year to control mercury emissions, it also moved to
downgrade the "hazardous" classification of mercury pollution from power
plants -- a seemingly minor change that effectively gave utilities 15
more years to implement the most costly controls. Earlier this year, the
Energy Department helped insert wording into a Senate bill to reclassify
millions of gallons of "high-level" radioactive waste as "incidental," a
change that would spare the government the expense of removing and
treating the waste.
The fill rule is one of several key changes to coal-mining regulations
that have been enacted or proposed by the Bush administration, which
took office promising to ease bureaucratic burdens for the coal industry
and expand the nation's energy production. To administration officials
and mining companies, the changes are simply clarifications that
eliminated ambiguities in the law. To environmental groups, they are the
administration's payback to an industry that has raised $9 million for
Republicans since 1998. The coal industry is a political force in West
Virginia, a vital swing state whose five electoral votes for George W.
Bush helped put him over the top in 2000.
One proposed change -- described by administration officials as a
"clarification" of the Clean Water Act -- would effectively void a
two-decade-old ban on mining within 100 feet of a stream. Another
proposal would scale back the federal government's legal obligation to
police state mining agencies, by reclassifying certain duties from
"nondiscretionary" to "discretionary."
In October 2001, the Bush administration intervened to change the focus
of a federal mining study that was poised to recommend limits on the
size of new mountaintop mines. And, in an internal policy change this
spring, the administration promulgated guidelines that allow ditches dug
by coal companies to serve as substitutes for streams that were being
buried by debris.
"They call them 'clarifications,' but it's really all about removing
obstacles," said Jack Spadaro, who regulated coal mines for 32 years as
a federal mine inspector and senior mining safety officer. "They've made
it easier for companies to dump mining waste into streams, and harder
for citizens to challenge them."
Bush administration officials defend the new policies, saying they are
in keeping with a national energy strategy that seeks greater
independence from foreign sources without sacrificing environmental
safeguards.
"It's hard to strike that balance, but we believe, right down to the
core of this agency, that we can do both," said Jeffrey D. Jarrett,
director of the federal Office of Surface Mining. Noting that it was
Congress that approved the practice of mountaintop mining 30 years ago,
Jarrett said the administration's actions have introduced a measure of
"stability and certainty" for the mines and their neighbors.
Mining industry officials say the changes benefited ordinary Americans
by ensuring a steady supply of cheap, domestic coal at a time of
instability in global oil and natural gas markets. "President Bush
recognized the value of coal to our economy, and the role it plays in
providing electricity," said Jack N. Gerard, president of the National
Mining Association. "The administration has been diligent in its efforts
to avoid disruptions in our energy supply."
Government studies show that mountaintop mining inflicts a heavy toll.
Streams that have not been buried under mining debris carry high levels
of silt and toxic chemicals, experts say. About 5 percent of forest
cover in southern West Virginia has been stripped away by mines, along
with popular mountain vistas that can never be replaced.
With a rebounding industry now seeking permits for more and larger
mines, the environmental impact is likely to grow, the reports show. One
federal study projects that if current trends hold, over the next decade
affected land will encompass 2,200 square miles, an area larger than
Rhode Island.
"A huge percentage of the watershed is being filled in and mined out,
and we have no idea what the downstream impacts will be," said one
senior government scientist who has studied mountaintop mining
extensively but insisted on anonymity for fear of repercussions at work.
"All we know is that nothing on this scale has ever happened before."
Big Costs -- and Big Payoff
Dismantling something as large as a mountain requires advanced
technology, big machines and massive amounts of explosives. Opponents in
West Virginia describe the result as "strip mines on steroids."
Rather than tunneling into a mountain's face to reach the coal,
mountaintop miners remove as much as 600 vertical feet of summit to get
at the coal seams inside. Many of the mines encompass multiple peaks and
thousands of acres in between, including large swaths of temperate
hardwoods and myriad streams.
After the trees are cleared away, miners detonate scores of explosive
charges to shear slabs of rock from the underlying coal. Gargantuan
machines called draglines clear away the rock with bucket scoops that
can hold 100,000 pounds, or as much weight as 40 Toyota Corollas.
While the capital costs are enormous, so is the payoff to the industry.
Traditional mines extract about 70 percent of the coal from an
underground seam; the recovery rate for mountaintop mines approaches 100
percent. The new mines also require far fewer workers -- sometimes only
a few dozen per mine. Still, those jobs are high-paying and highly
coveted, and the mines themselves continue to generate billions of
dollars for local economies. For those reasons, many state politicians
and even labor unions embrace the technique.
A growing number in central Appalachia despise it. A poll commissioned
by a West Virginia environmental group this year found that opponents of
the practice outnumber supporters by 2 to 1. "Opposition is broad and
deep, traversing all demographic groups and every region of the state,"
said Daniel Gotoff of Lake Snell Perry & Associates, a Democratic
polling firm based in the District.
As more mountaintops disappear and sometimes entire villages along with
them, resistance has spread. Coal companies have offered to buy and
demolish houses near the mines, effectively depopulating settlements.
Residents who remain recite a familiar litany of complaints: dust, truck
traffic, constant blasting that rattles nerves and sometimes damages
houses. Even more jarring for many is the sight of the destruction of
the ancient hills, familiar landmarks and touchstones for generations of
families.
"I've been coming up through these mountains since I was 5 years old.
Now the place looks like an asteroid hit," Bo Webb, a retired
businessman and Vietnam veteran, said of the 1,800-acre mountaintop mine
above his house in central West Virginia's Raleigh County. "A lot of us
up here have fought for our country. To see what is happening now to our
homes makes me so mad."
The state's top elected officials, including Democratic Gov. Robert E.
Wise Jr. and his Republican predecessor Cecil H. Underwood, have
supported mountaintop mining as critical to the coal industry's
existence in West Virginia. Appalachian coal competes not only against
other energy sources -- such as cleaner-burning natural gas -- but also
against coal imports and other coal-producing regions of the country.
"Intense competition leads to bigger mines," said Mark Muchow, West
Virginia's chief administrator for revenue operations. "You need bigger
mining operations just to stay competitive."
Coal industry officials also contend the miners are careful stewards of
the land, strictly adhering to laws requiring them to rehabilitate
sheared-off mountains by planting grass and trees. Some claim a positive
aspect to the toppling of West Virginia's famous green peaks: In a
region where flat land is at a premium, the industry has created what
officials describe as "unique" spaces for commercial development or
wildlife habitat. "People have used these sites to build high schools
and golf courses -- they see it as an opportunity to stimulate the
economy and create jobs," said Gerard, the National Mining Association
president. "Some of the sites are so beautifully reclaimed, many people
can't tell the difference."
But the environmental damage is hard to miss. In mining areas, the waste
rock piles up in huge "valley fills" that are sometimes more than a mile
long and hundreds of feet deep. They have buried more than 700 miles of
headwater streams across central Appalachia, government studies show.
Other impacts are felt downstream. Federal water-quality studies have
found substantially higher levels of selenium, a mineral that is toxic
to fish in high doses -- in rivers near the mines. The U.S. Fish and
Wildlife Service estimated that as many as 244 species, including
several that are endangered, were being affected by the loss of forest
and aquatic habitats. "The individual and cumulative impacts to both
aquatic and terrestrial ecosystems are unprecedented," the agency's West
Virginia field office concluded in a September 2001 report.
Only in the late 1990s did the problems begin to command the sustained
attention of federal environmental officials. W. Michael McCabe, a
deputy administrator of the Environmental Protection Agency in the late
1990s, recalled feeling astonished during a 1998 plane flight in which
he passed over several of the largest mines in the middle of the lush
West Virginia highlands. The denuded, flattened hills were a jarring
sight, "like landing decks for alien spacecraft," he said.
McCabe said his agency had not anticipated the exponential growth of
mountaintop mines. A key factor, he said, was a decision by mining
companies in the 1980s to apply the techniques and supersize machines of
western strip mines to Appalachia, where coal mines historically had
been smaller and less efficient.
"The acreage affected by these mines went through the roof -- from the
hundreds to the thousands of acres," said McCabe, now a private
consultant. "It was the difference between a hand saw and a chain saw."
Bending Policies
Ironically, the fill rule that reopened the door to mountaintop mining
grew out of an attempt by the Clinton administration to strengthen
government oversight of these dramatically larger new mines. But what
happened to the proposal shows how different administrations can bend
the policies of their predecessors to meet their own priorities.
By mid-1998, McCabe and other senior EPA officials wanted a broad review
of federal policies for mountaintop mines. They were motivated not only
by accumulating evidence from the field but also by growing external
pressure from local environmentalists and citizens groups, current and
former agency officials said in interviews.
A lawsuit filed in 1998 accused federal agencies of violating the Clean
Water Act by granting permits for mountaintop mines. The suit, filed by
the environmental group West Virginia Highlands Conservancy, cited a
little-noticed clause in the regulations of the Army Corps of Engineers,
the agency that grants approval for most construction projects involving
alterations to streams, rivers or wetlands. While the Army allowed
builders to put clean "fill" materials in waterways for purposes such as
building bridges or artificial reefs, the rules explicitly forbade the
dumping of waste.
As the Army defined it, mining debris was "clearly waste," said Joe
Lovett, director of the Appalachian Center for the Economy and the
Environment, a nonprofit law firm that represented activists in the
suit. Yet, for more than a decade, Army officials had issued the permits
anyway.
"The Army was allowing coal companies to use waterways as giant trash
heaps, without any environmental analysis," Lovett said. "They did not
have the authority to do that."
In 1999, a federal judge agreed with Lovett's interpretation in a
decision that called into question the legality of virtually every
mountaintop mine in Appalachia. Faced with a potentially disastrous
shutdown of the region's most powerful industry, the Clinton
administration agreed to an out-of-court settlement: The activists would
drop the lawsuit in exchange for a federal promise of closer scrutiny of
mining permits and a thorough scientific review, called an environmental
impact statement.
The administration would allow mining debris to be deposited in streams,
but only as part of a comprehensive approach that would address
long-term environmental concerns. "We would not go forward with the fill
rule except as part of this comprehensive approach," McCabe said.
But the comprehensive approach went nowhere. Negotiations between the
EPA and industry officials on proposals for limiting the size of valley
fills stalled and then stopped altogether as the presidential election
of 2000 approached. The court ruling that questioned the legality of
valley fills was overturned on appeal. Meanwhile, West Virginia coal
executives had begun to stake their hopes on an administration change in
Washington. The state's coal firms raised $275,000 for Bush. Many West
Virginia coal miners, fearing that Democratic contender Al Gore's
environmental policies would eliminate coal field jobs, joined prominent
business leaders in campaigning for the Texas governor.
After the election, administration officials publicly promised to remove
the legal bureaucratic roadblocks to the mining permits. Newly appointed
Deputy Interior Secretary J. Steven Griles, a former coal industry
lobbyist, made a specific pledge to the West Virginia Coal Association
in a speech in August 2001:
"We will fix the federal rules very soon on water and spoil placement,"
Griles said.
New Administration
Under the new Bush administration, the "fixes" were rolled out in quick
succession. The first was the fill rule, which had been proposed by the
Clinton administration but essentially abandoned in the face of harsh
criticism from local opponents and environmentalists, who flooded the
EPA with 17,000 letters and public comments.
On April 6, 2001, four months after Bush's inauguration, representatives
of the National Mining Association met with EPA officials for 90 minutes
to argue for reviving the rule -- but with significant changes. For
starters, the mining representatives said, the Clinton-era rule set too
many limits on the kinds of materials that could be classified as
"fill," according to an EPA memo summarizing the meeting.
Industry officials "expressed opposition to adding a definition of
'unsuitable fill material,' " the memo states.
The attempt to revive the rule drew protests not only from
environmentalists but also from many Republicans in Congress. Rep.
Christopher Shays (R-Conn.) joined Rep. Frank Pallone Jr. (D-N.J.) in
sponsoring a bill that would have outlawed dumping mine waste in
streams. And, as the Bush administration had not scheduled additional
public hearings on the revised rule, Sen. Joseph I. Lieberman (D-Conn.)
convened a Senate hearing to decry what he described as a "shameful"
attempt to weaken the Clean Water Act. Among those speaking out against
the rule at the hearing was Kevin Richardson, a Kentucky native and
member of the pop group the Backstreet Boys.
Yet, the final version of the Bush administration's fill rule published
in May 2002 contained nearly all the changes the mining industry
requested. The definition of "fill" was expanded to include "rock, sand,
clay, plastics, construction debris, wood chips [and] overburden from
mining." Only garbage was expressly excluded.
As the fill rule moved through the bureaucracy, the administration was
taking steps to contain another potential threat to mountaintop mining:
the environmental impact study begun under President Bill Clinton to
assess the need for limits on the size of future mines.
As part of the study, federal scientists and engineers had spent more
than two years documenting damage to Appalachian streams and wildlife.
Some panel members had prepared draft recommendations that called for
restricting valley fills larger than 250 acres. But Griles, the Interior
Department undersecretary, informed panel members in an Oct. 5, 2001,
memo that their study lacked the proper focus and needed restructuring.
He ordered recommendations for "centralizing and streamlining coal-mine
permitting," according to the memo, which the environmental law firm
Earthjustice obtained under the Freedom of Information Act.
"We do not believe the [study] as currently drafted focuses sufficiently
on those goals," Griles wrote.
Scientists who were at work on the report found the change in direction
inexplicable, internal memos and e-mails show. "Our proposed approach
was subsequently voted down within the executive committee," one Fish
and Wildlife Service employee explained to colleagues in a memo, "in
part because a decision appears to have been made that even minor
modifications to current regulatory practices are now considered to be
outside the scope" of the study.
The Bush administration defended its handling of the environmental
study. In a written statement, the Interior Department said Griles had
not sought to influence the panel. The statement notes that Griles had
urged scientists to recommend ways to allow mining to continue "in an
environmentally sound manner."
By the time the Bush administration released the study, all proposals
for limiting valley fills had indeed been omitted. And, as Griles had
urged, the document's main recommendations called for cutting
bureaucratic red tape and speeding up the permitting process.
One government scientist complained in an e-mail to colleagues: "All we
have proposed is alternative locations to house the rubber stamp that
issues the permits."
In January 2004, the administration took another major step to help the
coal industry dodge legal obstacles. At the time, mining permits were
being challenged in court on grounds that they violated a 20-year-old
regulation that banned mining within 100 feet of a stream. Like the fill
rule, the "buffer zone" rule, adopted during the Reagan administration,
was widely ignored in practice. Owing to the sheer size of the projects,
mountaintop mining in Appalachia always entailed destroying streams.
Under the Bush administration's proposal, miners would be exempt from
the buffer rule, provided they could show that they took measures "to
the extent possible" to protect water quality and avoid harm to fish and
wildlife. Administration officials contend that the buffer-zone rule
does not weaken environmental protections but merely recognizes a
reality that has existed in the coal fields for decades.
The changes have not entirely eliminated legal threats to mining. Last
month, a federal judge revoked permits for 11 West Virginia mines,
ruling that federal officials used improper procedures in granting
fast-track approval for new mines. Industry officials are preparing an
appeal while lawyers study the implications of the ruling.
But overall, the cumulative impact of the regulatory changes has been to
close legal avenues industry opponents use to challenge the practice
that industry officials prefer to call "steep-slope mining," coal
supporters and critics agree.
"These changes were unequivocally helpful," Chris Hamilton, vice
president of the West Virginia Coal Association, said in an interview.
"By revising certain ambiguous regulations and contorted legal
interpretations of the Clean Water Act, the administration has improved
regulatory stability and predictability."
Campaigning for Coal
Buoyed by higher coal prices and an improving regulatory climate, West
Virginia's coal companies recently took to the road to make their case
for increased public support for mountaintop removal. Last month, at a
workshop in Shepherdstown, W.Va., co-sponsored by state academic and
elected leaders, industry executives argued that increased coal
production could even help win the war against terrorism.
The workshop's theme: "The role of coal in economic and homeland security."
Coal boosters at the seminar touted the industry's present and future
role as energy supplier to the nation, noting that the United States'
vast domestic coal reserve generates half of the nation's electricity
supply, and could continue to do so for centuries, at current
consumption rates. Officials also played up the economic importance of
an industry that pays $1 billion in direct wages in West Virginia and
accounts for nearly 13 percent of the gross state product.
"Coal keeps the lights on," said Roger Lilly, marketing manager for
Walker Machinery Co., a supplier of heavy equipment for mountaintop
mines. "Coal today also is a cleaner, greener fuel, and it's our bridge
to the future. We've got to show people what a great job we're doing."
Critics of the industry, however, feel anything but secure.
"It makes me furious," said Janice Nease, 68, a retired teacher who
became an anti-mining activist after her village, a settlement of about
30 homes, was bought and destroyed to make room for a mine. "We keep on
plugging away, but it's harder."
For years, Maria Gunnoe, 36, a waitress and single mother, watched
nervously as coal companies hacked their way north along a ridge of
mountains near the town of Bob White, W.Va. Then, three years ago, the
first mining crews arrived on what she calls "my mountain," a rocky
ridge called Island Creek Mountain directly above her house, her
family's home for three generations.
"I sit here in the evening and listen to the equipment ripping and
tearing at the mountain," Gunnoe, a coal miner's daughter, said as she
sat on her porch on a late spring afternoon. "It's the same as if they
were ripping and tearing at the siding of my house."
She has seen flooding wash away a third of her front yard and destroy
the only bridge that connects her property to a public highway. Her car
has been vandalized and her children have been bullied because of her
outspoken opposition to the mine, she said. Her nerves are raw from the
near-constant blasting, which continues even on holidays. "It sends the
kids screaming, running through the house. The dogs hit the dirt," she said.
Far worse, she said, is the emotional toll. A peak that served as the
natural backdrop for her entire life, the lives of her parents, her
grandparents and her two young children is vanishing before her eyes.
The family has received offers from coal companies to sell the small
wood-frame cottage her father built. Gunnoe says she will never sell,
but she wonders how long her family can hold on.
"The true cost of coal is here," she said quietly, staring off into the
crisp mountain air, at her mountain. "We pay for it with our lives and
our future. And also our past."
Excellent graphic at:
http://www.washingtonpost.com/wp-srv/nation/daily/graphics/mountaintopremoval_081704.html
© 2004 The Washington Post Company
_____Altered State_____
. Flattening the Mountains:
<http://www.washingtonpost.com/wp-srv/nation/daily/graphics/mountaintopremoval_081704.html>
How mining companies tear down mountains and fill adjacent streams and
hollows. Also, how the "Fill Rule" became law.
. Map:
<http://www.washingtonpost.com/wp-srv/nation/daily/graphics/miningmap_081704.html>
W.Va. Mining Areas
_____More >From Series_____
. Bush Forces a Shift In Regulatory Thrust
<http://www.washingtonpost.com/wp-dyn/articles/A1315-2004Aug14.html>
(The Washington Post, Aug 15, 2004)
. 'Data Quality' Law Is Nemesis Of Regulation
<http://www.washingtonpost.com/wp-dyn/articles/A3733-2004Aug15.html>
(The Washington Post, Aug 16, 2004)
About this Series_____
About this Series
Sunday
An Agency Takes a Turn
Under President Bush, the Occupational Safety and Health Administration
has made sometimes subtle changes in regulations that carry large
consequences for workers and employers. Across the government, the Bush
administration has started fewer regulations and killed more inherited
proposals than did either of the two previous administrations.
Monday
A Policy Puts Science on Trial
A last-minute addition to an unrelated piece of legislation has created
a tool for attacking the science used by federal agencies as a basis for
new regulations. Industry has embraced the Data Quality Act to challenge
32 major proposals, including a successful assault on efforts to
restrict the use of the herbicide atrazine.
Today
A Word Accelerates
Mountaintop Mining
By changing the word "waste" to "fill" in a regulation covering coal
mining, Bush appointees have allowed an increase in the destruction of
mountaintops in Appalachia.
__ Regulatory News By Agency __
_____Regulations on the Web_____
. Government Printing Office <http://www.access.gpo.gov/nara> provides
the text of rules.
. The Federal Register <http://www.nara.gov/fedreg> lists new rules and
proposals daily.
. The General Accounting Office <http://www.gao.gov> offers cost-benefit
analyses of major rules.
. OMB Watch <http://www.ombwatch.org> is a public interest group that
monitors the Office of Management and Budget.
. The Mercatus Center at George Mason University
<http://www.regradar.org> provides conservative analysis of rules.
. Regulation.org <http://www.regulation.org> is the conservative
Heritage Foundation's rules site.
. The AEI-Brookings Joint Center for Regulatory Studies
<http://www.aei.brookings.org> offers scholary rules analysis, including
its $100 Million Club
<http://www.aei.brookings.org/100_million_club/100_million_club.asp>.
<http://www.washingtonpost.com/wp-dyn/articles/A6462-2004Aug16.html>
<http://www.washingtonpost.com/wp-dyn/articles/A6462-2004Aug16.html>
A nine-billion gallon slurry pond is seen under construction near
Beckley, W.Va. (Post)
<javascript:void(0)>
<javascript:void(0)>
"Mountaintop removal" mining has flattened many peaks, such as these
near Kayford, W.Va. (Bob Bird -- AP)
<http://filtergate.com/fi.html>
<javascript:void(0);>
© 2004 The Washington Post Company
<javascript:leapto('nodeSections');>
<javascript:void(0);>
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