Two days; two excellent decisions from federal appeals courts.
Last Monday, the 6th U.S. Circuit Court of Appeals ruled in our favor in a case against the U.S Army Corps of Engineers and its issuance of streamlined national permits for mountaintop removal operations. The court said the Corps failed to follow Clean Water Act and National Environmental Policy Act requirements prior to issuing such permits.
The next day, the U.S. Court of Appeals for the District of Columbia ruled that “whenever” actually means “whenever,” finding that the U.S. Environmental Protection Agency has full authority to revoke a valley fill permit from the Corps even after the permit has been issued, as it did when it vetoed the permit issued for Arch Coal’s Spruce No. 1 mine.
The 6th Circuit appeal, which we worked on with our long-time partner Jim Hecker of Public Justice, dealt with whether the Corps adequately considered impacts of past permits when undertaking the required “hard look” at the potential cumulative environmental impact of projects it approved under its streamlined Nationwide 21 permit, and the Corps’ failure to explain how mitigation proposed under those projects would lead to minimal cumulative impacts.
The 6th Circuit panel found that the Corps used past impacts as a predictor of future impacts, rather than assessing the cumulative environmental effects. That, the court said, violated NEPA’s requirement for the agency to “adequately consider and disclose the environmental impacts of its actions.”
The court said it was also troubled by the Corps’ fact-free response to the charge in the lawsuit that it failed to provide analysis or documentation for its determination that compensatory mitigation will help reduce the cumulative impact of the valley fills it approved under NPW 21. The court said of the Corps’ response: “Absent from this discussion is any mention of the Corps’ factual underpinnings for this determination.”
The court concluded that in order to follow applicable federal regulations, the Corps needed to document “its assessments of environmental impacts and examining past impacts respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CQA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given.”
The arguments in this case are very similar to a pending appeal before the 4th U.S. Circuit Court of Appeals in the Heyland Reylas case, though that case deals with an individual permit rather than a general one. It will be interesting to see if the same reasoning prevails.
Appalmad has a special interest in the Spruce case. Our attorneys have been fighting this 2,300-acre mine since 1998. In 2009, EPA warned the Corps that the permit would lead to irreparable environmental damage and threatened the health of local residents. When the Corps refused to take action, EPA finally vetoed the permit in 2011. Mingo-Logan Coal, the Arch subsidiary that owns the mine, sued.
Last year, a district judge sided with the coal company, in a widely criticized ruling that turned on whether the word “whenever” has any actual meaning. The district judge accused the EPA of engaging in “magical thinking” to conjure up the power to veto a permit after it had been issued.
The appeals court, however, had no problem finding the authority clearly and unambiguously spelled out by the law:
Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’s specification but instead expressly empowers him to prohibit, restrict or withdraw the specification “whenever” he makes a determination that the statutory “unacceptable adverse effect” will result. 33 U.S.C. § 1344(c) (emphasis added). Using the expansive conjunction “whenever,” the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.
See 20 Oxford English Dictionary 210 (2d ed.1989) (defining “whenever,” used in “a qualifying (conditional) clause,” as: “At whatever time, no matter when.”). Thus, the unambiguous language of subsection 404(c) manifests the Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.3 This construction is further buttressed by subsection 404(c)’s authorization of a “withdrawal” which, as EPA notes, is “a term of retrospective application.”
This important ruling underscores the fact that, even though the Corps has permitting authority for valley fills under Section 404 of the Clean Water Act, the EPA retains an incredibly strong role in ensuring those permits are properly issued and actually protect the waters of the United States.
By Dan Radmacher
Why are West Virginia’s streams so polluted that less than a quarter of them can support their designated uses — such as recreation, providing drinking water, or supporting aquatic life?
The example of the passage and implementation of Senate Bill 562 is very telling. It’s yet another case of state regulators and lawmakers capitulating to a polluting industry rather than enforcing laws to protect the environment.
In recent years, it’s become very clear that waters downstream from the valley fills associated with mountaintop removal mining are at greater risk for biological impairment, violating West Virginia’s water quality standards.
DEP did nothing about this, ignoring guidance from the U.S. Environmental Protection Agency. Finally, Appalachian Mountain Advocates sued CONSOL, and won an important settlement in which the company agreed to try to restore the biological integrity of Broadtree Branch, which flows into 20 Mile Creek.
The coal industry realized that this issue could end up being very expensive, so it responded in typical fashion. It didn’t seek ways to mine more responsibly and cause less damage. Instead, it sued to block EPA’s guidance and it convinced a compliant state legislature to pass SB 562, an attempt to weaken those narrative standards by redefining them.
DEP also responded in typical fashion. Every time a water quality standard becomes meaningful, i.e. painful to industry, the agency capitulates and weakens it. SB 562 required DEP’s secretary to rewrite the rules for determining when streams were considered biologically impaired under the narrative standards.
At about the same time, DEP was compiling its biennial list of impaired streams as required by the federal Clean Water Act. Identifying impaired streams is the first step toward taking action to improve water quality. Impaired streams may be subject to Total Maximum Daily Loads that could strictly limit mining permits in order to protect aquatic life.
So DEP decided not to list any new biologically impaired streams — though at least 173 new streams should have been listed under the regulations currently in place.
DEP is taking this approach despite the fact that the new water quality standard hasn’t been reviewed or approved by EPA as required — indeed, even though the regulations implementing the new standard haven’t been drafted.
SB 562 specifically states that the new standards shouldn’t be less protective than existing ones, but already it is resulting in less protection for the state’s waters. DEP’s actions will delay protection of impaired streams through the TMDL process for years.
What does this episode illuminate? Simply this: Both the legislative and executive branches of West Virginia government are bending over backwards to protect the coal industry from taking responsibility for the pollution it produces and the damage it causes. Right now, this is saving the coal industry hundreds of millions of dollars.
Understand this: If the industry successfully evades this responsibility, the taxpayers of West Virginia will be left shouldering the enormous cost of cleaning up the mess.
We recently put up a map showing all of the impaired streams in the state in red. The state was blanketed in red, especially the coal fields.
With this attitude on the part of public officials, is it any wonder why?
Radmacher is communications director for Appalachian Mountain Advocates. This is a version of a commentary that originally appeared in The Charleston Gazette.
January 22, 2013
More than 40 percent of West Virginia’s rivers are too polluted to pass simple water-quality safety thresholds. They are too polluted to be safely used for drinking water or recreation, or to support healthy aquatic life.
This is due in large part to pollution from decades of mining. From ongoing pollution from active mountaintop removal mines and toxic discharges from poorly reclaimed mines, the quality streams of West Virginia has never been more degraded.
According to the 2012 Draft West Virginia Integrated Water Quality Monitoring and Assessment Report by the West Virginia Department of Environmental Protection, less than a quarter of West Virginia streams fully support all or some of their assessed uses.
The state has failed to collect sufficient data to determine the health of 36 percent of the streams in the state.
In many ways, Appalachian Mountain Advocates has had to take over the job of weak West Virginia state agencies like DEP that have failed to protect the environment. In addition to our legal challenges, we’ve been compiling and mapping West Virginia water quality data over the last several years. The results are a very graphic illustration of just what mining has done to West Virginia’s streams.December 18, 2012
On November 17, about 70 Appalmad supporters gathered in Lewisburg for an afternoon of music, poetry and fellowship. The Boom! Boom! Fundraiser featured poet Crystal Good and the music of the Black Twig Pickers.
It was a tremendous success, and we’d like to thank everyone who was involved, especially Suzanne Thorniley and her host committee, who came up with the idea for the fundraiser and did the planning that made it possible; the Law Office of Roger D. Forman, which helped offset some of the expenses of the fundraiser; and Ted and Calvert Armbrecht, who provided wine and beer from The Wine Shop.
The event was fortuitously timed for a celebration, coming just days after we announced that Patriot Coal had agreed to get out of mountaintop removal mining. If you couldn’t make it, but would like to support our work, you can send a tax-deducitble donation to us at Appalachian Mountain Advocates, PO Box 507, Lewisburg, WV 24901, or just click on the Donate Now button in the upper right-hand corner to make a secure, online donation.December 11, 2012
The recent agreement Appalachian Mountain Advocates reached with Patriot Coal was, as it should have been, huge news. This development proved one thing clearly: When coal companies are forced to pay the true costs of mountaintop removal mining, this destructive form of mining is no longer profitable.
All the overheated rhetoric about the so-called “war on coal” by politicians like U.S. Sen. Joe Manchin, Gov. Earl Ray Tomlin and U.S. Rep. Shelley Moore Capito can’t conceal this one simple fact: Mountaintop removal mining exists only because these politicians and their hand-picked regulators have allowed coal companies to shift much of their cost of doing business onto the public.
If there is a war on coal, it was declared in 1972 when Congress passed the Clean Water Act and declared that the streams and rivers of the United States could not continue to be used as dumping grounds for industry’s pollution. The 1977 Surface Mining Control and Reclamation Act raised the stakes and put in place more limits on the damage coal companies could cause.
But the coal industry didn’t spend the last 40 years figuring out how to comply with these landmark environmental laws. Instead, the industry spent its time and its money trying to stop the enforcement of these laws and undermine their very foundation.
The industry has been especially effective at the state level, where compliant politicians like Govs. Manchin and Tomblin appoint pro-industry regulators who not only refuse to enforce the law, but actively work with the coal industry to thwart the attempts by citizens to force compliance with the law. The stakes were not small.
According to Securities and Exchange Commission filings, Patriot estimates its obligations to clean up selenium pollution as a result of actions Appalachian Mountain Advocates brought against the company represent a $440 million liability. That enormous liability, which could have ended up being borne by the people of West Virginia, was a huge part of Patriot’s decision to get out of mountaintop removal mining.
Other coal companies are creating pollution issues of similar magnitude. Rather than working to ensure the costs of these issues fall on those profiting from the mining, West Virginia’s politicians are bleating about the “war on coal” and complaining about U.S. Environmental Protection Agency actions that fall far short of what the agency should be doing to protect the environment and the people of this state.
Time is running out to make sure that coal companies pay to clean up the messes they have created. Whether Manchin, Tomblin, Capito and others are willing to admit it, the central Appalachian surface coal mining industry is in an inevitable decline that has nothing to do with the EPA’s actions. Market forces, longstanding environmental laws and geology are working against the industry far more effectively than Washington bureaucrats.
Rather than confront these realities and plan for a future in which coal plays a far less predominant role in the economy, West Virginia politicians have chosen to cling fiercely to the past, spurred on by a relentless and well-funded propaganda campaign by the coal industry that has exploited people’s fears for their jobs and their futures.
Instead of bowing to the industry, West Virginia’s leaders should be working to make sure that mining is done responsibly, safely and in a way that won’t leave West Virginia taxpayers weighed down by the compliance costs the industry evaded.
West Virginia’s leaders should be working to pave the way for a brighter future for the state than experienced in post-boom coal counties like McDowell. But decades of simply kowtowing to industry demands has made West Virginia’s political class intellectual lazy. They are unwilling — or unable — to look beyond the immediate needs of this one industry to really think about the long-term needs of West Virginia as a whole.
The real discussion in West Virginia today should be about how to build a sustainable, prosperous economy that benefits all of the citizens of the state rather than enriching a select few.
If you’re not hearing that conversation, it’s time to start asking yourself why, and time to start demanding it.
Radmacher is communications director of Appalachian Mountain Advocates. A version of this commentary appeared in The Charleston Gazette.
November 16, 2012
Today, Patriot Coal announced it has agreed to get out of the mountaintop removal business – permanently. This agreement represents an enormous victory in Appalachian Mountain Advocates’ 14-year battle against mountaintop removal mining.
Our ongoing actions against Patriot to ensure that it could not shirk its responsibility to clean up the water pollution caused by its operations played a vital role in that decision. Early this year, we reached a landmark settlement with the company in which it agreed to clean up toxic selenium pollution at multiple outfalls at three major mining complexes.
According to filings with the Securities and Exchange Commission, it will cost Patriot $440 million to clean up the pollution in this agreement and another action we prevailed in earlier. That cost otherwise could have fallen on the taxpayers of West Virginia.
Patriot is currently the second largest surface mining company in West Virginia. Because of the agreement we reached with the company, it will no longer be able to engage in mountaintop removal mining or other large-scale surface mining once its current permits run out. In addition, the company agreed to an unprecedented permanent cap on surface-mining tonnage. Any new small-scale surface mining it engages in must be associated with an underground mine. Additionally, even that small-scale mining will come to an end when its current leases expire. After that, the only surface mining the company will conduct will be that directly related to the reclamation of underground coal mine refuse areas.
The company will retire its draglines and focus on underground mining only.
In a statement, the company, which is currently going through reorganization in federal bankruptcy court, said it had come to the decision that engaging in surface mining “was no longer in its long-term interest” and it acknowledged the “significant” impact of its mountaintop removal minings on local communities.
We believe any mining company that actually has to pay the costs to clean up the environmental destruction caused by mountaintop removal mining will realize that this destructive method of mining doesn’t make environmental or economic sense. We will continue to work to ensure that every mining company does have to pay those costs.
Read Patriot CEO Ben Hatfield’s statement here.October 23, 2012
The U.S. Corps of Engineers continues to ignore a growing body of scientific evidence suggesting that mountaintop removal mining could be making people who live near mining sites sick in a number of ways. Mountaintop removal has been linked to increases in cancer rates, birth defects and higher mortality rates, among other things.
In a pair of recent lawsuits brought against mountaintop removal mines in Kentucky and West Virginia, Appalachian Mountain Advocates is attempting to force the Corps to follow the National Environmental Policy Act’s requirement to determine whether permits it issues may have the potential to “affect public health and safety.” If so, the Corps is supposed to conduct an in-depth Environmental Impact Statement.
But, despite more than a dozen peer-reviewed studies indicating serious health impact on nearby residents, concerns expressed by the U.S. Environmental Protection Agency, and a number of public comments raising the public health issue and other environmental concerns, the Corps concluded the impact would be insignificant and that an EIS would not be necessary.
NEPA sets a very low threshold for when an EIS should be conducted. Despite this, the Corps routinely issues FONSI statements (Finding of No Significant Impact) for valley fill permits. Anyone who has ever seen a valley fill knows the Corps must have an extremely skewed view of “significant impact” to make this claim time after time.
Appalachian Mountain Advocates is representing the Sierra Club, Kentuckians for the Commonwealth, the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch in these cases.September 28, 2012
Support Appalachian Mountain Advocates and join us on Nov. 17 in downtown Lewisburg for an afternoon of poetry, music and discussion.
The event will run from 3 pm. to 6 pm. and will feature a poetry reading and discussion by Affrilachian poet Crystal Good, whose stunning poem, “Boom Boom,” inspired the title of this fundraising event. The lively music of the Black Twig Pickers will also be featured.
We’ll serve regional autumn appetizers, along with beer, wine and fresh-pressed cider.
Suggested donations for this special event are $75 in advance. To purchase your ticket in advance, either send a check to Appalachian Mountain Advocates, P.O. Box 507, Lewisburg, WV 24901, or click on the Donate Now button above, donate the appropriate amount, and then send an email to firstname.lastname@example.org alerting us to the donation and giving the names of those attending.
118 W. Washington St., Lewisburg, W.Va.
3 p.m.: The Black Twig Pickers
4:30 p.m.: Crystal Good
The West Virginia Environmental Quality Board issued an important ruling late last month calling on the state Department of Environmental Protection to only issue mountaintop removal mining permits after analyzing the potential for those permits to increase certain types of pollution – sulphates, total dissolved solids and electrical conductivity – and only if the permits have discharge limits for those pollutants.
The 26-page ruling came in a case brought by Appalachian Mountain Advocates on behalf of the Sierra Club challenging a permit for Arch Coal subsidiary Patriot Mining Co.’s New Hill West Mine along Scotts Run near Cassville in Monongalia County.
The challenge asserts that DEP should have done what’s called a “Reasonable Potential Analysis” to determine whether the permit for the mine would result in pollution discharges that would violate West Virginia water quality standards. If that analysis found it could, DEP should have put discharge limits and monitoring requirements on the permit.
Last year, the board found that DEP should have conducted such an analysis for sulphates, total dissolved solids and increased levels of conductivity. That decision was appealed and a Kanawha County Circuit Court judge ordered the board to spell out its rationale in more detail.
The result is a legally binding document that spells out the scientific evidence about the damage to West Virginia streams done by mountaintop removal mining.
The ruling said, ”The board finds that a growing body of science has demonstrated that discharges from surface coal mines in Appalachia are strongly correlated with and cause increased levels of conductivity, sulfate, and TDS in water bodies downstream from mines. The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams.”
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.
This creates a toxic soup. Alone, many of these elements aren’t at high enough concentrations to cause problems. But the cumulative impact can be dangerous to the health of streams.
The board faulted DEP for ignoring both the science and its own data. ”Despite longstanding and abundant evidence within the WVDEP’s watershed database for biological damage … in streams draining surface mines in West Virginia’s coalfields, the WVDEP has made little attempt either to determine the cause of such damage or to limit it,” the board ruling said.
As Executive Director Joe Lovett told The Charleston Gazette’s Ken Ward Jr., ”The EQB’s ruling is in alignment with all of the science. The science is getting stronger every day saying these mines are degrading our state’s waters.”
Despite that, however, the day after the EQB ruling, a federal judge struck down the U.S. EPA’s water quality guidance memo that included the recommendation for state’s to adopt strict conductivity standards.
That rejection, though, was based on the legal and regulatory process, not science. And the EQB ruling means that, in West Virginia, anyway, conductivity standards will be included in permits moving forward. The important thing is that state and national regulators are understanding the importance of limiting the impact of increased conductivity in streams.July 13, 2012
The Center for Public Integrity, NPR and The Charleston Gazette combined their talents to put together an incredibly important series about the resurgence of a deadly disease: black lung.
Black lung, which steals the breath and eventually the lives of coal miners exposed to excessive coal dust, should have been eradicated decades ago. Congress passed the Coal Mine Health and Safety Act in 1969 requiring dust levels to be monitored and kept at safe levels.
For decades, that promise has gone unfulfilled. According to NPR’s Howard Berkes, 70,000 coal miners have died from black lung since 1970. Another 60,000 are currently receiving black lung benefits.
For all the talk by politicians and the coal industry’s vast PR machine about the so-called “war on coal,” news such as this gets scant attention.
“If [Appalachian politicians] care so much about coal miners, why haven’t any of them stood up to give a speech saying this is outrageous that coal miners are dying from black lung disease?” asked Gazette reporter Ken Ward Jr. in an interview with West Virginia Public Radio’s Beth Voorhees. “It might be time to ask those politicians about this war on coal miners, which is essentially what’s happening with black lung disease.”
The 1969 law tasked the Mine Safety and Health Administration with ensuring “to the greatest extent possible, that working conditions in each underground coal mine are sufficiently free of respirable dust to permit each miner the opportunity to work underground during the period of his entire life without incurring any disability from pneumoconiosis or any other occupation-related disease during or at the end of such period.”
But coal companies did their own sampling. Many cheated, putting sampling apparatus in idled portions of mines where dust was low, or simply falsifying results. Efforts to strengthen enforcement have been tied up in rule making disputes and court battles for years.
The industry blocked efforts in the Clinton administration to strengthen monitoring, then the United Mine Workers protested a Bush-administration effort, which miners worried was an attempt to weaken coal-dust limits.
In a story by Ward, former MSHA Director Davitt McAteer said these aborted efforts demonstrated the serious flaws in our political system. ”Even if you recognize a very serious and obvious worker health problem, the system just can’t get anything done about it,” McAteer said.
Aside from the terrible human toll, there is also a huge financial cost. The industry and federal government have paid out more than $45 billion in black lung benefits since 1970. Congress has had to put billions of dollars into the Black Lung Disability Trust Fund in order to keep it solvent.
Once more, it becomes clear that there’s an awful high price to pay for cheap coal.