Partner Profile: Ohio Valley Environmental Coalition

Posted on April 17, 2012 by Dan Radmacher

Over the years, the Ohio Valley Environmental Coalition has been one of our most consistent clients in the cases we have brought against mountaintop removal mines. With members across Central Appalachia, OVEC knows many people who have been directly hurt by mountaintop removal mining.

“OVEC organizes communities, which helps us understand the problems of those communities,” said Appalmad Executive Director Joe Lovett. “They live in the coalfields. They’re from there.”

While Appalmad values the organizing work that OVEC does, OVEC founder and co-director Dianne Bady appreciate the value of the legal work Appalmad has done.

“I can’t imagine how, collectively, the stop-mountaintop removal movement could have achieved what we have without the litigation Joe has led,” Bady said.

OVEC project coordinator Vivian Stockman agreed. “If it weren’t for the lawsuits, DEP and Army Corps of Engineers would have nothing holding them up from rubberstamping these permits and pretty much ignoring what the citizens are saying,” she said.

OVEC organizer Maria Gunnoe credits Appalmad with saving her home not once but twice. First in a 2007 lawsuit and then in a recent selenium settlement with Patriot Coal.

“You can’t put words to what that means to our family,” Gunnoe said. “We can stay on our native homeland. It’s where we belong. That means a tremendous amount.”

OVEC taught Gunnoe that she had an important role to play in the battle against mountaintop removal mining.

“As an impacted community member, OVEC made me realize I could bring strong [legal] standing to these lawsuits,” she said.

The lawsuits, Gunnoe said, have had lasting results. “I think about areas that are still there that otherwise wouldn’t be: Dry Branch – if it wasn’t for the lawsuit in 2007, that little hollow would be a valley fill. It’s just so powerful to go back to these areas and know that the only reason they’re still there is because of the lawsuits. I can’t think of anyway we could have saved some of these valleys and peaks if not for this litigation.”

Lovett also credits Stockman for her major role in calling attention to mountaintop removal mining. Her communications work, especially, he said, “has been essential to getting this issue out statewide.”

 

Judge overturns EPA Spruce veto; we will continue to fight

Posted on March 27, 2012 by Dan Radmacher

Attorneys for Appalachian Mountain Advocates have been fighting the largest mountaintop removal permit in West Virginia history since 1998. With last week’s decision by U.S. District Judge Amy Berman Jackson to overturn the U.S. Environmental Protection Agency’s veto of the permit for the Spruce No. 1 mine, that fight will continue.

The judge ruled that the EPA had overstepped its authority by revoking the permit after it had been issued. The EPA should appeal that ruling.

When the EPA announced its veto, the agency discussed the importance of the streams that would be buried if the permitted activities were allowed:

As least-disturbed streams in a watershed largely affected by mining, Pigeonroost Branch, Oldhouse Branch and their tributaries represent a high-value resource for the wildlife within the watershed. The Spruce No. 1 Mine will eliminate the entire suite of important physical, chemical and biological functions provided by these streams, including maintenance of biologically diverse wildlife habitat, and will critically degrade the chemical and biological integrity of downstream waters.

This remains true. And it is also true that the scientific understanding of the value of headwaters has grown since the permit was issued in 2007 – information that led EPA to conclude the Spruce permit should be vetoed.

The Clean Water Act gives EPA the authority to prohibit the specification of an area as a disposal site (or to withdraw such specification) whenever it determines that such usage would have an unacceptable adverse effect on municipal water supplies, shellfish beds or fisheries, recreation areas or wildlife – an important authority for the agency charged with protecting the nation’s waters.

We will continue to fight this permit by every possible means and believe we can stop this mine and prevent all the damage it would cause.

Virginia isn’t fulfilling its Clean Water Act responsibilities

Posted on March 7, 2012 by Dan Radmacher

Because Virginia has refused to adequately notify the public of pending mining permits, Appalachian Mountain Advocates joined the Sierra Club and Southern Appalachian Mountain Stewards to petition the U.S. Environmental Protection Agency to force the state to fix the issue or strip it of its ability to run its own Clean Water Act program.

On Aug. 31, Appalmad requested to be placed on the Virginia Division of Mined Land Reclamation’s mailing list to be notified of pending permits. A DMLR representative wrote back to say that such a list did not exist. DMLR was informed that Clean Water Act regulations clearly require such a list for notifications. Eventually, DMLR agreed to meet with citizens about the development of such a list, but since that December meeting has taken no action to create it.

Such a list is a vital part of an effective public notice system. It ensures that interested citizens and organizations – such as Southern Appalachian Mountain Stewards – can keep abreast of pending permits and submit comments or appeals in a timely manner. Other states allowed to run their own NPDES programs have all managed to create modern public notice systems that make it easy for concerned citizens to keep track of pending permits. There is no reason Virginia cannot do the same.

Because the state has failed in this important part of its duty, the EPA should assure Virginia follows Clean Water Act requirements for public notice or revoke the state’s program and take over the permitting of coal surface mining and reclamation activities.

 

Preparing for a post-coal future

Posted on February 22, 2012 by Dan Radmacher

The West Virginia Center on Budget & Policy has backed up its long-time call for an increased severance tax to pay a long-term economic development and diversification fund with a detailed report released last month.

The study found that a one percent increase in the severance has on coal and natural gas would enable a Economic Diversification Trust Fund to pay out $583 million in interest payments through 2025 that could be put to use improving and diversifying West Virginia’s economy. Through 2035, more than $2 billion could be allocated.

If properly run, the permanent fund would contain more than $3.7 billion by 2035, and would provide a permanent source of revenue for West Virginia.

If money for the fund were split between improving West Virginia’s education system and infrastructure, it could play a key role in creating the conditions that will allow West Virginia’s economy to thrive even as coal production plummets – a day that government forecasts say is coming sooner rather than later.

West Virginia should have started such a fund decades ago, but it’s not too late. As the report notes, there are several successful examples of states that have created similar funds.

The severance tax hike makes this proposal a tough sell for many West Virginia lawmakers. Some similar ideas are floating around that don’t include a tax hike, and thus wouldn’t generate nearly as much money. Senate President Jeff Kessler proposed establishing a West Virginia Future Fund using a portion of severance tax proceeds from Marcellus Shale gas production.

This proposal would leave the money untouched for 20 years and, even then, it would generate a far smaller balance – $1.5 billion in 2035 compared to $3.7 billion for the Economic Diversification Trust Fund. In other words, the Future Fund would have less money in it at the end of 20 years than the diversification fund would pay out over the same period of time.

Coal has left West Virginia with many unfortunate legacies: a crippled economy, a spoiled environment, a corrupted political system, to name just a few. This proposal would allow for one more legacy from coal, a positive one: A fund dedicated to improving the economy of the state and the lives of its residents that, if managed properly, would pay dividends in perpetuity.

The citizens of West Virginia should be demanding the establishment of this fund immediately.

The Black Twig Pickers keep old-time music fresh

Posted on February 1, 2012 by Dan Radmacher

This is the first in an occasional series of articles and videos highlighting the people and culture of Appalachia.

Before he went to law school, Appalachian Mountain Advocates attorney Isak Howell was a reporter at The Roanoke Times. While there, he got together with two other reporters – Mike Gangloff and Ralph Berrier Jr. – to form the Black Twig Pickers, an old-time music trio.

Nearly twelve years later, the Twigs are still together, though the lineup has changed. The core trio includes Howell on guitar, Gangloff on fiddle and banjo and Nathan Bowles on banjo and percussion. Fiddler Sally Morgan often joins them in performances as does bass player Sam Linkous.

The Twigs are regulars at the Floyd County Store, which hosts a Friday Jamboree every week. They also play regularly at The Cellar and Gillie’s in Blacksburg. (For upcoming performances, click here.)

Old-time music exists everywhere, but Howell thinks the Appalachian region has done better at keeping the music alive. Gangloff and Howell both believe the geography of Appalachia infuses the music, though neither seem to think that the oft-noted isolation of the Appalachian people has much to do with that.

“I, and probably we, can’t subscribe to the idea that this region was just a preservative pickle jar for old sounds,” said Howell.  ”We can’t subscribe to it because we see too much variation and too many personal contributions, to believe that this is just Scottish/Irish stuff that was preserved through infrastructure isolation.”

But the geography comes through, Howell said, as it does in music everywhere. “Bahamian guitarist Joseph Spence plays with the rhythm of the sea, gangsta rappers sound like pavement and gunfire, and old-time sounds like mountains and creeks and trains and horse hooves (sometimes overtly and cheesily, sometimes more subtly).  So, whether or not ‘Yew Piney Mountain’ was originally rooted in a family story or a Civil War battle, it can and does work today as an impression of the place itself.”

“It’s a traditional music that’s part of the landscape around here,” Gangloff said. “The songs are tied very directly to physical features and to events, and it just resonates particularly well.”

Gangloff has gotten into the habit of seeking out older players, such as fiddler Richard Bowman, to learn their songs – though imitation is not the goal.

“I think we feel like we’re creating something not just preserving something,” said Howell. “We feel like we are making music, not playing someone else’s music.

The Twigs have recorded about seven albums, including full-length collaborations with other artists. The most recent releases were “Ironto Special” in 2010; “Glory in the Meeting House,” a gospel collaboration with singer-guitarist Charlie Parr, also in 2010; and “Eastmont Syrup/Even to Win is to Fail,” a split LP with songs from the Twigs, Parr and guitarist Glenn Jones, which was released in 2011.

Currently, they’re working on several recording projects, including a a 7-inch vinyl record of “Yellow Cat” backed with “You’ll Never Miss Your Mama,” which is coming out on the Thrill Jockey label in April.

For more about the Black Twig Pickers, check out the band’s Facebook page and blacktwigpickers.org.

Tell us your Appalachian story

Posted on January 26, 2012 by Dan Radmacher

We want to help Appalachian residents tell their own stories, to help show the rest of the nation what is happening here and what is being lost in this national energy sacrifice zone.

As part of that effort, we’d like to hear from you. Use the comments section below to tell your story of life in Appalachia. Tell us about where you grew up. What life is like there now. Why you left, if you did. Tell us about the beauty, the music, the art, the culture, the environment. Tell us about living in the shadow of a mountaintop removal operation and dealing with the blasting, the dust, the overloaded trucks. Tell us about working for the mines, either underground or up above. Tell us about teaching in the schools, or working on a Main Street that’s seen better days. Tell us what you love about life in Appalachia, and what you hate.

Everyone will have a different story, and we want to help tell them all. Please include a valid email address (which won’t be made public) so we can contact you if we’d like to do more with your story.

Uranium mining in Virginia

Posted on January 19, 2012 by Dan Radmacher

“If the Commonwealth of Virginia rescinds the existing moratorium on uranium mining, there are steep hurdles to be surmounted before mining and/or processing could be established within a regulatory environment that is appropriately protective of the health and safety of workers, the public, and the environment.”

–  Report by the National Academies of Science on uranium mining in Virginia

The Virginia General Assembly requested the recently released study by the National Academies of Science to help lawmakers decide whether it would be wise to lift the state’s nearly 30-year moratorium on uranium mining as proposed by a company that wants to mine a deposit in Pittsylvania County.

Dissect the study’s conclusion and translate it into plain language, and you get this: Uranium mining poses grave long-term threats to human health and the environment that could be partially mitigated by effective regulations.

There’s one very large problem with that: In the history of mining in America, there are very few examples of truly effective regulations – even when extreme potentials for danger are well known.

In 1972, a coal slurry damn at the head of Buffalo Creek failed. The rush of slurry down the hollow destroyed thousands of homes and killed 125 people. It was a horrific disaster that left scars that linger to this day.

Twenty-nine years later, in the fall of 2000, another slurry impoundment – this one in Martin County, Ky. – failed. There were no deaths, but the spill of 300 million gallons of slurry polluted hundreds of miles of streams and contaminated the water supply of thousands of residents.

In 2008, an impoundment holding more than a billion gallons of coal fly ash slurry failed, covering more than $300 acres. According to some estimates, that massive spill will cost nearly $1 billion to clean up.

Miner health and safety laws have improved drastically over the years, but mining is still an incredibly dangerous job. Regulation of even well-established risks has been far from ideal.

Black lung is a disease caused by inhaling coal dust. Regulations aimed at curbing this killer were remarkably effective – at first. Black lung cases decline by 90 percent since the early 1970s when strict federal regulations were put in place.

But in recent years, as some mining companies have become better at skirting those regulations, the number and severity of cases have risen dramatically. Autopsies of the 29 victims of the Upper Big Branch Mining disaster revealed that most of the miners had black lung, even young miners who had only been working since the regulations were in effect.

There are countless other examples of the failure of the best-intentioned regulations to actually work as enforced.

Much of what we do at Appalachian Mountain Advocates is aimed at ensuring that mining regulations live up to their promise as much as possible. It’s a difficult job that as often involves taking action against regulators as the mining industry.

The damage done by coal mining is difficult and expensive to undo. The damage that could be caused by uranium mining in Virginia would be far more difficult to mitigate – if mitigation is even possible.

As the report warned, the waste left over from uranium mining and processing, called tailings, remains extremely hazardous for thousands of years. Keeping tailings contained for that length of time would be even more difficult in Virginia – which experiences frequent storms that produce significant rainfall.

Most uranium mining in the United States is conducted in arid, largely unpopulated areas of the country. Mining in Virginia’s far wetter climate in close proximity to significant populations poses far greater hazards.

“Natural events such as hurricanes, earthquakes, intense rainfall, or drought could lead to the release of contaminants if facilities are not designed and constructed to withstand such events, or if they fail to perform as designed,” the report said.

Imagine the Buffalo Creek or Martin County disasters exponentially magnified by the impact of radiation and you begin to see the stakes.

Especially in the current political atmosphere in which regulations are judged mostly by their fiscal impact on business as opposed to how they protect the public, it would be folly to trust that a rigorous enough regulatory scheme would be developed – and enforced – to protect the citizens of Virginia from the catastrophic risks this mining would entail.

Radmacher, former editorial page editor of The Roanoke Times, is communications director for Appalachian Mountain Advocates (www.appalmad.org). Versions of this commentary appeared first in The (Norfolk) Virginian-Pilot and The Roanoke Times.

Patriot agrees to the largest selenium settlement yet

Posted on January 19, 2012 by Dan Radmacher

There is probably no better example of the strategy that drives our work here at Appalachian Mountain Advocates than the settlement reached with Patriot Coal to clean up selenium pollution at three major mining complexes in West Virginia.

If approved by the federal government, the settlement would require Patriot to clean up pollution at dozens of discharges at three mining complexes: Hobet 21 along the Boone-Lincoln county line, Samples in Kanawha County, and Ruffner in Logan County.

Considering that Patriot’s cost to clean up just four outfalls will cost at least $95 million according to the company’s public estimates, it’s reasonable to assume that the cost of treating the 43 outfalls covered under this settlement will reach into the hundreds of millions of dollars.

If not for this settlement, that cost would have eventually been borne by the taxpayers of West Virginia. The main reason that coal is considered a cheap form of power is that so many of its costs are not paid by mining companies or the electric utilities that burn it. Instead, those costs are externalized, shoved onto an unsuspecting public in the form of pollution, public health and safety issues, vast ecological damage, erosion of local economies and other hard-to-calculate costs.

With this settlement, Patriot Coal took responsibility for some of those costs. Selenium is a bioaccumulating toxin that can severely disrupt aquatic life in streams far from the mines that generate it. Because it accumulates in the food chain, even tiny amounts can cause significant ecologic damage. (Read more about selenium here.)

It is very expensive to clean up, and once selenium is exposed through mining activity, treatment is likely to be required in perpetuity.

The best way to avoid selenium contamination is to avoid mining in areas where the coal and ground above it contain high amounts of the toxin. This is why it’s significant that one part of the settlement includes a promise from Patriot to drop plans for future surface mining at its Jupiter-Callisto Mine in Boone County.

This is the latest in a series of cases in which Appalachian Mountain Advocates has won settlements to require coal companies to clean up selenium pollution. In addition, these and other settlements have resulted in donations of more than $14 million to the West Virginia Land Trust and  West Virginia College of Law’s Land Use and Sustainable Development Clinic for projects that will preserve land near rivers and streams.

Another settlement will clean up water and preserve land

Posted on December 21, 2011 by Dan Radmacher

Appalachian Mountain Advocates has reached another settlement in a case involving selenium pollution from a mountaintop removal mine that will ensure the enormous cost of treating polluted run-off won’t fall on taxpayers. We brought this case on behalf of the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Coal River Mountain Watch and the Sierra Club.

The agreement with Alpha covers its Twilight and Red Cedar operations in Boone County and the Kanawha Division along the Fayette-Kanawha border, which were former Massey Energy operations before Alpha bought the company.

Under the agreement, Alpha will treat the selenium pollution at these mines, which will cost the company around $50 million.

Selenium is a bioaccumulative toxin able to cause catastrophic ecological effects at extremely low levels. Once selenium is exposed by mining, it becomes a perpetual, expensive problem. (Read more about selenium here.)

In addition to the treatment, Alpha also agreed to pay $450,000 in civil penalties to the federal government and contribute $4 million to the West Virginia Land Trust to conserve land near rivers and streams in the affected watersheds. In all, this settlement and others like it have resulted in around  $9 million in funding for the land trust and for the Land Use and Sustainable Development Clinic at West Virginia University’s College of Law.

CONSOL settlement is a first

Posted on December 6, 2011 by Dan Radmacher

In a landmark settlement, a coal company has agreed for the first time to attempt to deal with biological impairment downstream from a valley fill.

The settlement, which still requires approval by federal court, was reached with Fola Coal Company, a subsidiary of CONSOL Energy. Attorneys for Appalachian Mountain Advocates and Jim Hecker of Public Justice had sued Fola on behalf of the Sierra Club and the West Virginia Highlands Conservancy, alleging that its Surface Mine No. 3 in Nicholas and Clay counties, West Virginia, was violating state and federal water quality standards by causing elevated levels of conductivity in the Broadtree Branch, which feeds into 20 Mile Creek, part of the Gauley River watershed.

When coal is mined, rock and other material is exposed to air and water for the first time in hundreds of thousands, perhaps even millions, of years. That material is broken up and reacts with oxygen and water. Many natural elements dissolve and run off in the water. Those ions, including sulfates, increase the ability of water to conduct electricity. Thus the measure of specific conductivity turns out to be the best way to measure the impact of a wide variety of pollutants downstream from a mine. (To learn more about conductivity, click here.)

On Nov. 20,  a settlement was reached that would require Fola to attempt a stream restoration project to lower the level of pollutants in Broadtree Branch. After that project is complete, the water will be monitored and the effectiveness of the project will be assessed by a Special Master of Biology. If that project fails to bring the mine into compliance with water quality standards, Fola will have to build a treatment or abatement system.

“It’s scientifically indisputable that valley fills cause high conductivity and impair life in streams,” said Appalachian Mountain Advocates Executive Director Joe Lovett. “This coal company has agreed to remedy that.”

Lovett also pointed out that this was the first time a coal company had agreed to comply with the narrative water quality standard as opposed to numerical limits on particular pollutants. This is important as scientific research has been clearly showing significant ecological damage that appears to be related to the toxic soup of discharge from valley fills that can’t be easily linked to a particular pollutant at a particular level.

As Dr. Margaret Palmer, director of the National Socio-Environmental Synthesis Center and a professor at University of Maryland’s Department of Entomology who has done much of the research on this conductivity, it’s the net effect of a number of pollutants that appears to be causing the damage. Conductivity is the best measure of that effect.

In a recently issued guidance document, the U.S. Environmental Protection Agency recommended that state and federal regulators take into account the scientific evidence about conductivity when setting permit limits. In addition, the West Virginia Environmental Quality Board has ruled that conductivity limits should be included in a valley fill permit. Conductivity is almost certain to become a bigger issue in permitting and enforcement of mountaintop removal mining.

In addition to the stream restoration project (and fallback plans for a treatment or abatement system), Fola also agreed to pay a $25,000 penalty to the federal government and make a $200,000 contribution to the West Virginia Land Trust to help fund a riparian area preservation project WVLT is working on with the West Virginia College of Law’s Land Use and Sustainable Development Clinic. If the stream restoration project fails, Fola will make an additional $500,000 donation to WVLT.

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