West Virginia Highlands Voice

By Cindy Rank

The energy capitals of the country are reeling with the mad dash for MORE, MORE, MORE energy, electricity, power, and, and, and…

.. And mother earth’s supposed allies in federal and state government are either blindsided or overwhelmed. While we citizens are either dazzled, dazed, dumbfounded, or just darn angry !

As for me, things are happening at such a frenetic pace that I personally find it hard to breathe, much less think or focus enough to put two sentences together in understandable fashion. So, with apologies to Voice readers accustomed to more reasoned presentations of facts and questions, I beg your indulgence to allow me to vent a bit.

First, let us consider gas drilling into the deep Marcellus shale formation.

My apologies [again] for placing this first, but as the Organizational Representative of FOLK (Friends of the Little Kanawha) on the Board of Directors of the WV Highlands Conservancy I feel compelled to put my backyard first.

We are currently being swamped with Marcellus horizontal drilling and hydraulic fracturing.

Where oh where did this come from? … And, ever more important, where is this taking us?

The concept of mountaintop removal brought phenomenal engineering technologies to the Appalachian ridges well before any state or regulatory agency could respond with adequate regulation and guidance to protect the earth and her children (animal: terrestrial and aquatic, vegetable: forests and plains, and human: communities and culture) as the environmental laws of the 1970’s meant to protect them.

Longwall mining machines and technologies are holding those agencies hostage as well. much to the dismay of communities and to the dismal impacts to the water resources where that mining is occurring.

And now we have the 21st Century version of gas drilling overtaking all that is good and holy up and down the ridges and valleys of the Appalachian region – i.e. from New York State through Pennsylvania and into West Virginia and parts of Ohio as well.

What it includes: Drill holes some ten thousand feet deep [~7,000 ft down vertically and 3-4,000 ft horizontally] . Then fracing (pressure fracturing the tight shale rock) with some 2,000,000-6,000,000 (2-6 million) gallons of water [mixed with chemicals and sand] . Then catching and disposing of at least some 1/3 of that frac water [now heavily laced with brine and naturally occurring radioactive material from the drilling process itself].

WOW!

For those of us along the Little Kanawha River it means our roads being torn up, traffic problems on those narrow roads and noise and drill sites lit up like Christmas trees, but also massive amounts of water being withdrawn from the headwaters we fought so hard to protect in the late 1970’s and early ’80’s.

It’s hard enough to accept the sometimes 5 acre well sites [at least twice the size of those 1980 well sites we abhorred] that accommodate up to 6 horizontal well bores. But the horror stories of these deep wells gone wrong due to pressure in the vertical well casing or cement, or the actual fracture of rock strata that allow for migration of gas from a variety of layer of the earth below to enter and foul our wells, springs and streams, or some other unexpected OOPS! event, ..we all are nervous and seeking answers.

The U.S. Environmental Protection

Agency (EPA) is conducting a study of this hydrofracing process especially as it is being applied in the new deep and horizontal well drilling into tight shales such as the Marcellus. [Hydraulic fracturing has been used for maybe 60 years in vertical well drilling, but this new, expanded use is presenting additional concerns due to the SCALE of the drilling now being done.]

Affected citizens in New York, Colorado, Pennsylvania and West Virginia are flocking to EPA hearings where input is being given.

At least two WV Highlands Conservancy members (Sue Braughton and myself) were among the many citizens (some 130+) who commented at the Canonsburg hearing July 22, 2010.

Phew !

Second, What of EPA (US Environmental Protection Agency) and that agency’s recent proclamation concerning mountaintop removal and valley fill mine permits ?

As much as I appreciate and am ever grateful for those within the agency who have recognized for more than a decade that mountaintop removal and valley fill strip mines are abhorrent . and cause impacts well beyond the letter and intent of our nation’s environmental laws (primarily Clean Water Act, Surface Mining Control and Reclamation Act, and NEPA (National Environmental Policy Act)), I must admit the results of the Enhanced Coordinated Review and Permitting leaves me frowning.

Of the permits held up by EPA due to unanswered, unjustified reasons for advancing those permits which are obviously creating an unacceptable cumulative impact to water resources within and outside of the mining permit areas, several have been granted that make me more than slightly nervous.

The Hobet 45 permit – part of the now nearly 15,000 acre/ 25 square mile Hobet 21 complex overlapping the Boone/Lincoln County line and the Mud, Big Ugly and Little Coal River watersheds, as well as the Pine Creek permit in the Spruce drainage of the Little Coal River have been given the green light by EPA and are either granted or awaiting approval by the Corps.

Reading the mine development plans for these permits has been like a hot dagger to my heart. Granted valley fills per se have been eliminated. But, instead of leaving some semblance of the sides of valleys to subsequently fill, these new permits appear to allow mining everything clear to the valley floor then putting it all back together again like silly putty or building castles in the sand.

The wonders of engineering are to provide appropriate configurations of compacted rock within the backfilled area that roughly replicate the perched aquifers so many of us rely on to feed our springs and headwater streams through periods of draught and dry weather.

For the Corps’ part, the agency is to write a more comprehensive guidance about mitigation and re-establishing both form and function in re-created streams in backfilled ‘mine-through’ areas of permits ..

Margaret Palmer, Bruce Wallace, Ben Stout and others have argued eloquently in one courtroom hearing after another about the lack of function in these recreated streams even if water actually does eventually flow over rock and newly created riffle.

The ecosystems and bugs and leaf litter and critters large and small that make headwater streams the ecological treasures that they are have yet to be re-created or re-introduced anywhere and so it appears even the most sympathetic EPA to date is still allowing permits on a wing and a prayer that the future will be different with a few tweaks here and there.

THIRD, The U.S. Office of Surface Mining, Reclamation and Enforcement (OSM for short) has agreed with their sister agencies, EPA and CORPS, to do something within its program to address the issues arising from litigation these past dozen years and to address the controversial stream buffer zone rule rarely enforced then totally decimated in the eleventh hour of the Bush Administration.

Transparency is the new watchword of OSM as well as the other agencies. Unfortunately, most transparent of all is the buffer zone rule itself which has all but disappeared amid a morass of nice sounding words and sincere suggestions that better CHIAs (Cumulative Hydrological Impact Assessments), more careful evaluation of the mine plans and a variety of other tweaks of the Surface Mine Act is all that is required to rein in the destructive mining known as mountaintop removal/valley fill mining.

I have little hope that the public meetings being held as I write this article will provide much more than what OSM has already provided… But I suppose miracles can happen.

FOURTH: THE ARMY CORPS OF ENGINEERS (CORPS) — I’d like to leave this section blank, because that’s pretty much what we’ve gotten from the Corps these past thirty years, but duty bound I should at least elaborate a bit.

Dropping the Nationwide Permit #21 for coal mining activities is a welcome recognition of how these permits have heretofore been used to allow the large, non-”minimal” impact on streams of valley fills and huge strip mines. (Judge Goodwin recognized that years ago here in southern West Virginia, but our neighboring states will now have to at least partially mend their ways.)

From earlier tales of how the agency (i.e. Corps) “just oozed into” this permitting for mining operations and have since moved to more recent permit adjustments, I feel the Corps has been dragging its regulatory feet with regard to mining.

The agency has recently been convinced/coerced into compiling a guidance for working in streams that is meant to provide adequate guidance for ‘mitigation’ that will lead to re-creating viable headwater streams, stream energies and functions similar to those that have been destroyed, mined-through, buried or temporarily impacted.

FINALLY: PATH —- I grew up in Pittsburgh when the bridge to nowhere was being built… To me the PATH 765 kV transmission line is a path to nowhere, a blighted blip upon the land and hearts of our people and a speed bump in the road to the real path to a visionary future where West Virginia, Virginia, Maryland, and so many other states are no longer so beholdin’ to coal fired energy production that we are willing to sacrifice our souls for the plentiful black-gold.

*******

And, so for now..

I lay me down to sleep and pray the lord our world to keep.. ‘Cause we surely aren’t doing such a hot job after all.

…Wonder if that lord prefers streams ‘filled’ with waste rock…or ‘re-created’ from scratch and leftover mountain parts?

Contact: Donna Heron 215-814-5113 / heron.donna@epa.gov

PHILADELPHIA ( July 27, 2010)  - Today, the U.S. Army Corps of Engineers (Corps) issued a final Clean Water Act (CWA) permit to Coal-Mac Inc. for the Pine Creek Surface Mine project in Logan County, West  Virginia.

Consistent with the Clean Water Act and the recent EPA guidance on mountain top mining, the Agency’s consultation with the Company and the Corps led to significant changes to the permit that will reduce potential adverse impacts to water quality and avoid significant degradation of the aquatic ecosystems in the Pine Creek watershed. The key changes include reductions to stream impacts, protection of water quality through a strict conductivity level, enhanced mitigation and restoration, and reduction of cumulative impacts. EPA also reached an agreement with the company related to sequencing of valley fill construction. The company may only proceed with the first valley fill and any additional valley fills will have to be evaluated individually as part of the agreement. If EPA and the Corps find that any of the valley fills are adversely impacting water quality, we will not approve additional mining at the site. The company agreed to meet all conditions presented by the Agency.

Key changes and special permit conditions obtained by EPA and consistent with April 1^st Guidance include:

Reduce Stream Impacts: The original mine plan proposed to have the full mine area disturbed and all three proposed valley fills under construction within 12 to 18 months of commencing operations. EPA worked with the company to reduce stream impacts significantly.

Protect Water Quality: EPA worked with the Corps and company to ensure mining related conductivity (a measure of salinity) remains at levels that will not cause or contribute to degradation to water quality or streamlife.  Extensive chemical and biological stream monitoring is required to demonstrate that conductivity remains below acceptable levels, set in the EPA guidance, before the Corps and EPA will approve additional mining.  If this condition is not achieved, Coal-Mac is not authorized to proceed with the construction of the next valley fill.

Sequencing Valley Fill: EPA reached an agreement to sequence valley fill construction so that no new mining is approved by the Corps and EPA unless it is demonstrated that water quality standards are being met and public health is being protected.

Enhance Mitigation: Coal-Mac proposed on-site stream restoration and creation of 40,000-plus linear feet of stream. The plan includes a significant monitoring plan and benchmarks for success, an adaptive management plan that provides back up plans if the projects are unsuccessful. It also includes upfront financial assurances.  The applicant’s benchmarks of success include biological, chemical and physical measures that are intended to replace the lost functions within the immediate watershed. EPA believes the proposed mitigation is consistent with Clean Water Act regulations.

Avoid Cumulative Impacts:  To address cumulative impacts, Coal-Mac has offered to deed-restrict three areas previously permitted to be filled on the Phoenix No. 5 Surface Mine operation, where five valley fills were authorized. Two valley fills have been constructed and Coal-Mac will deed-restrict the three-remaining unfilled sites. Those areas will not be subject to filling now or in the future.  This is an avoidance of impacts to 3,900 linear feet of stream channel.

EPA has committed to use its Clean Water Act regulatory authorities to improve protections for the public by reducing environmental and water quality impacts associated with coal mining.  The improvements to this permit demonstrate once again that the health, waters and environment of coalfield communities can be protected while also preserving the jobs and economic benefits. EPA will continue to coordinate with the mining community, the public, and other state and federal partners in the review of proposed surface coal mines in West Virginia, Ohio, Pennsylvania, Virginia, Kentucky, and Tennessee.

Have you seen Coal Country, the movie? WV Sierra Club is bringing Coal Country to two venues this summer.

Chuck Nelson will also tell folks about Appalachia Rising.

Charleston – August 6 – 7:00 PM

Hosted by the Unitarian Universalist Congregation – Charleston
520 Kanawha Boulevard West—Charleston, WV
Requested donation $5
Questions? Contact Frank Grant at 304.347.2220 or migrant@bellsouth.net

Lewisburg – August 7 – 7:00 PM

Hosted by William DePaulo Esq.
122 N. Court St. 3rd floor (Masonic Temple Building)
Requested donation $5
Questions? Contact Heather Heilman at 304-520-2807 or heatherheilman@yahoo.com

Coal Country – A Film by Mari-Lynn Evans & Phylis Geller

COAL COUNTRY is a dramatic look at modern coal mining. We get to know working miners along with activists who are battling coal companies in Appalachia. We hear from miners and coal company officials, who are concerned about jobs and the economy and believe they are acting responsibly in bringing power to the American people. Both sides in this conflict claim that history is on their side. Both miners and local activists have roots in the region that go back many generations. Most have ancestors who worked in the mines. Everyone shares a deep love for the land, but Mountain Top Removal mining, which has leveled over 500 Appalachian mountains, is tearing them apart. We need to understand the meaning behind promises of “cheap energy” and “clean coal.” Are they achievable? At what cost? Are there alternatives for our energy future?

COAL COUNTRY

Executive Producer: Mari-Lynn Evans
Written, Produced and Directed by Phylis Geller
More about the film at: http://www.coalcountrythemovie.com/

Mountaintop Removal Operations to Get More Scrutiny

The United States Army Corps of Engineers decided June 17, 2010, to suspend Nationwide Permit 21 in six Appalachian states. In its press release announcing the suspension, the Corps said:

The U.S. Army Corps of Engineers announced today it has suspended the use of Nationwide Permit 21 (NWP 21) in the Appalachian region of six states. NWP 21 is used to authorize discharges of dredged or fill material into waters of the United States for surface coal mining activities. The suspension is effective immediately and applies to the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia. NWP 21 continues to be available in other regions of the country.

The suspension in Appalachia will remain in effect until the Corps takes further action on NWP 21 or until NWP 21 expires on March 18, 2012. While the suspension is in effect, individuals who propose surface coal mining projects that involve discharges of dredged or fill material into waters of the United States will have to obtain Department of the Army authorization under the Clean Water Act, through the Individual Permit process.

The individual permit evaluation procedure provides increased public involvement in the permit evaluation process, including an opportunity for public comment on individual projects.

The Corps determined after a thorough review and consideration of comments that continuing use of NWP 21 in this region may result in more than minimal impacts to aquatic resources. Activities that result in more than minimal impacts to the aquatic environment must be evaluated in accordance with individual permit procedures. Therefore, NWP 21 has been suspended in this region and coal mining activities impacting waters of the U.S. in this region will be evaluated in accordance with individual permit procedures.”

This is the decision that was the subject of the October 13, 2009, hearing that turned into a pro-coal rally, a chance to bully anybody who disagreed with the pro-coal forces, a near riot, etc.(See The Highlands Voice, November, 2009). At that and other hearings in six states, about 6,000 people attended (including a substantial number of WVHC members) and about 400O gave oral testimony (including WVHC members).

The mob atmosphere that existed at the October 13 hearing prevented there being any real discussion of the proposal. Fortunately, there were other opportunities for commenting on the proposed change. The West Virginia Highlands Conservancy, as well as several other groups (Ohio Valley Environmental Council, Coal River Mountain Watch, Kentucky Riverkeeper, Kentucky Waterways Alliance, Kentuckians for the Commonwealth, Southern Appalachian Mountain Stewards, the Strip Mining Committee of Save Our Cumberland Mountains, Sierra Club, National Wildlife Federation, and Natural Resources Defense Council) made written comments upon the proposal

Overall, the Corps received approximately 23,000 comments. The 1,750 comments The Corps considered “substantive” were about evenly split for and against the modification and suspension.

Nationwide Permit 21 is what is known as a “general permit.” General permits are designed for activities that produce minimal environmental impact. They allow such activities to go forward with less scrutiny than there would be for activities that produce a more substantial impact.

Nationwide Permit 21 was issued in 1982 to allow dredged or fill material to be discharged into the waters of the United States from all surface mines without the scrutiny that would come if projects were examined individually.

Since 1997, the minimal scrutiny approach authorized by Nationwide Permit 21 has been used 1,473 times nationwide. Approximately 1,204 havae been in the six states covered by the suspension.

The world has changed since 1982. Here is how the Corps of Engineers explained it:

Since NWP 21 was first issued in 1982, surface coal mining practices have changed, and surface coal mining activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia have become more prevalent and have resulted in greater environmental impacts. Mountaintop surface coal mining activities increased because many of the remaining coal seams in the Appalachian region were less accessible to nonsurface coal mining techniques. Since the late 1990s, there have been increases in concerns regarding the individual and cumulative adverse effects of those activities on the human environment and the natural resources in this region, including streams and other aquatic resources.

In light of this new reality, the Corps of Engineers has suspended NPW 21. This would mean that mining projects which discharge dredged and fill material into the waters of the United States could do so only after more exacting scrutiny of review of individual projects.

Activities that were authorized by NWP 21 will be allowed to continue unless the district engineer of the Corps of Engineers takes action in a particular case. They may not be modified to allow additional filling of streams.

It has, of course, been the position of the West Virginia Highlands Conservancy for many years that NWP 21 was bad policy and probably illegal as well.

For Immediate Release – June 18, 2010

Contacts:

Jim Sconyers, West Virginia Chapter, Sierra Club, 304-698-9628
Dianne Bady, Ohio Valley Environmental Coalition, 304-360-2072
Cindy Rank, West Virginia Highlands Conservancy, 304-924-5802
Judy Bonds, Coal River Mountain Watch, 304-854-2182

Groups Take Action to Hold Coal Mine Operators Accountable for Toxic Selenium Pollution

State Regulators Fail to Protect Streams and Communities

Charleston, WV: The Sierra Club, Ohio Valley Environmental Coalition, Coal River Mountain Watch, and the West Virginia Highlands Conservancy have taken legal action to hold three coal mining companies accountable for dumping harmful amounts of toxic selenium into local waterways.

“For far too long, these companies have put profits over people,” said Dianne Bady, Co-Director of the Ohio Valley Environmental Coalition. “The companies need to learn that our streams and waterways are not their private dumping grounds.”

The companies, including Massey Energy, Arch Coal, and Patriot Coal, through their subsidiaries, are dumping unlawfully high amounts of toxic selenium into waterways from more than 20 coal mines and associated facilities in West Virginia. Selenium is a toxic heavy metal that causes deformities and reproductive problems in fish and amphibians.  At very high levels, selenium can pose a risk to human health, causing hair and fingernail loss, kidney and liver damage, and damage to the nervous and circulatory systems.

“Time and again we have seen coal mining in West Virginia, particularly mountaintop removal mining, lead to selenium pollution,” said Vernon Haltom of Coal River Mountain Watch.  “It is past time for these companies to figure out a way to keep their pollution out of our streams.”

Although the Clean Water Act permits held by the mine operators all include limits on the amount of selenium the mines can discharge, the West Virginia Department of Environmental Protection (DEP) has consistently given the operators extensions on the amount of time they have to bring their discharges below those limits.  As a result, the operators continue to discharge selenium at levels above the limits considered safe by DEP and the federal Environmental Protection Agency.  The most recent extensions all expired by April 5, 2010.  Rather than lower their pollution, the operators have tried a variety of legal tactics to avoid compliance, such that they are continuing to dump excess amounts of toxic pollution into West Virginia waterways.  And although DEP filed actions against several coal mine operators over the last week for the operators’ violations of selenium limits, these actions do not seek immediate compliance but again provide the operators with even more time to continue dumping pollutants.

“The technology exists to take selenium out of the discharge waters, but the coal operators just don’t want to have to use it,” said Jim Sconyers, Chair of the Sierra Club West Virginia Chapter.  “And the agencies let them get away with it over and over. It’s too bad we have to do the agencies’ work for them.”

“For DEP to continue down this path is to turn the law upside down and make a mockery of environmental protection,” said Cindy Rank of the West Virginia Highlands Conservancy.  “The Clean Water Act was written to protect and improve our waters, not to allow for ongoing pollution known to cause serious harm to aquatic life.”

The groups filed their three legal challenges in the Southern District of West Virginia and are represented by attorneys with the Appalachian Center for the Economy and the Environment.

Read and Save Patriot Complaint

Read and Save Massey Complaint

Read and Save Arch Complaint

See also Ken Wards Coal Tattoo blog posts:
http://blogs.wvgazette.com/coaltattoo/2010/06/17/more-lawsuits-filed-over-coals-selenium-pollution/
and
http://blogs.wvgazette.com/coaltattoo/2010/06/18/another-selenium-suit-targets-patriot-coal/

For Immediate Release:
June 17, 2010

Contact:
Carol Labashosky
carol.j.labashosky@usace.army.mil
Office: (502) 315-6769
Cell: (502) 741-7263

Army Corps of Engineers announces decision to suspend Nationwide Permit 21 in the Appalachian Region

WASHINGTON – The U.S. Army Corps of Engineers announced today it has suspended the use of Nationwide Permit 21 (NWP 21) in the Appalachian region of six states. NWP 21 is used to authorize discharges of dredged or fill material into waters of the United States for surface coal mining activities. The suspension is effective immediately and applies to the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia. NWP 21 continues to be available in other regions of the country.

The suspension in Appalachia will remain in effect until the Corps takes further action on NWP 21 or until NWP 21 expires on March 18, 2012. While the suspension is in effect, individuals who propose surface coal mining projects that involve discharges of dredged or fill material into waters of the United States will have to obtain Department of the Army authorization under the Clean Water Act, through the Individual Permit process. The individual permit evaluation procedure provides increased public involvement in the permit evaluation process, including an opportunity for public comment on individual projects.

On June 11, 2009, the U.S. Department of the Army, U.S. Department of the Interior and the U.S.  Environmental Protection Agency signed a Memorandum of Understanding with each agency agreeing to work together to reduce the adverse environmental impacts of surface coal mining activities in the Appalachian region. As a part of the MOU, the Corps agreed to issue a public notice to seek comment on the proposed action to modify NWP 21 to preclude its use in the Appalachian region.

On July 15, 2009, a Federal Register notice was published soliciting public comment on the Corps’ proposal to modify NWP 21. The notice also proposed to suspend NWP 21 in order to provide more immediate environmental protection while the longer-term process of modification is fully evaluated. The comment period was extended in response to many requests, and public hearings were conducted in October 2009 in each of the six affected states. Approximately 6,000 individuals attended the public hearings and about 400 individuals provided oral testimony. The Corps received approximately 23,000 comments during the comment period that concluded on October 26, 2009, of which 1,750 were substantive comments that were nearly evenly divided for and against the proposed modification and suspension actions.

The Corps determined after a thorough review and consideration of comments that continuing use of NWP 21 in this region may result in more than minimal impacts to aquatic resources. Activities that result in more than minimal impacts to the aquatic environment must be evaluated in accordance with individual permit procedures. Therefore, NWP 21 has been suspended in this region and coal mining activities impacting waters of the U.S. in this region will be evaluated in accordance with individual permit procedures.

NWP 21 verifications provided in writing by the Corps to mining companies before today’s suspension will continue to be valid until the NWP expires on March 18, 2012. Modification of NWP 21 will continue to be evaluated and a decision on this proposal will be made before NWP 21 expires.

Five pending NWP 21 requests are currently being processed in the Appalachian region affected by suspension of NWP 21. Corps districts will contact these applicants to discuss the process to submit individual permit applications for these activities. If applicants submit individual permit requests for these activities, the Corps districts will prioritize the evaluation of these applications. The Corps will work with the applicants and other interested parties to address and resolve substantive concerns and make final permit decisions as expeditiously as possible.

The Corps’ decision will be published in the June 18, 2010, edition of the Federal Register.  A copy of the notice, FAQs and the decision document will be posted on the Corps’ Web site at http://www.usace.army.mil/CECW/Pages/nnpi.aspx.

Judge rules selenium limits ARE being violated at the Hobet 22 mine, refuses to dismiss our litigation based on Hobet Mining’s arguments against us and allows our injunction proceedings to continue.  Court date set for August 9, 2010 in Huntington WV, 1:30 p.m to determine the extent and terms of the relief to be granted.

…Selenium continues to flow and companies drag their corporate feet.  Selenium continues to flow and DEP drags it’s regulatory feet.  Selenium continues to flow, citizens sue and the court rules that the law is clearly being violated. Even after all these many years/decades we continue to hope that this nation of laws and our own great state will someday do right by the environment and citizens who live in and depend on that environment, especially our irreplaceable water resources.

Read ruling here.

By Cindy Rank

West Virginia Highlands Conservancy joined several other local, state and national citizens and environmental organizations in rather lengthy and detailed comments in support of the proposed Environmental Protection Agency (EPA) veto of the Spruce #1 permit for the Blair area of Logan County, WV.

After more than a decade of legal and political wrangling over this 2,278 acre mine permit (originally proposed for 3,113 acres) that became the focus of our 1998 Bragg v. Robertson litigation challenging the validity of valley fill mine permits, the EPA at long last has suggested the evidence of environmental and social harm in the Spruce Fork drainage of the Coal River is undeniable and that to allow Mingo Logan Coal to proceed with its Spruce #1 plans to fill Pigeonroost, Oldhouse Branch, and more of Seng Camp Creek would add substantially to the cumulative impact of persistent and permanent harm.

In requesting comments on the proposal veto, EPA asked whether the discharge should be 1) permanently prohibited, 2) allowed as authorized by the Corps, or 3) restricted in time, size or other manner.

EPA further requested any additional information commenters might offer to fill in perceived gaps about personal and recreational uses of the waters in the area of the permit, quality of the streams, adverse impacts to fish and values of the receiving waters, potential cumulative impacts to human health and the environment within the Spruce Fork watershed and Coal River sub-basin, effectiveness of the proposed mitigation, etc.

Our comments of course support the permanent prohibition of all discharges covered by this permit insisting that no middle of the road alternative of sequential permitting can be justified.

The April 2, 2010 Federal Register Notice of EPA’s proposed veto included extensive legal findings and scientific evidence to support the proposed action. The record presented demonstrates the environmental and related community impacts that hang in the balance.

Our comments urge EPA to follow the valid science and legal requirements under the Clean Water Act by ensuring that the Spruce No. 1 Mine cannot proceed to cause irreversible and unacceptable adverse effects in an area of West Virginia that has already seen much more than its fair share of harm from mountaintop removal mining.

Researching census data and legal and historical records our friends at Earthjustice, Public Justice, the Appalachian Center and others helped flesh out the already substantial defense offered by EPA when announcing the proposed veto.

Links to both our comments and EPA’s informative Federal Register notice proposing the veto can be found below:
Spruce #1 Comments
www.epa.gov/region3/mtntop/spruce1.html

Additional information can also be found on EPA’s website at: http://www.epa.gov/owow/wetlands/guidance/mining.html

TWO WV RIVERS “MOST ENDANGERED”

By Cindy Rank

For each of the past 25 years the national organization AMERICAN RIVERS has selected ten rivers in America for their “most endangered” list.  Both the Gauley and the Monongahela Rivers made this years top ten list.

Rivers are nominated by concerned citizens and river groups across the country as being imperiled by some specific activity.

Choosing ten as the “Most Endangered” is meant to draw attention to the threat itself and to a major action in the coming year that might lessen the threat.  The listing encourages the public to voice support for those actions…  e.g. by writing to Congress or some federal or state agency that is considering some new regulation or legislation.

CHECKING IN AT #3 THIS YEAR IS THE GAULEY.

THREAT: Mountaintop Removal Coal Mining

Rising in the Monongahela National Forest and flowing southwest through the Gauley River National Recreation Area before joining the New River at Gauley Bridge to form the Kanawha River, the Gauley is well known and enjoyed by river runners, fishing enthusiasts, hikers, bikers and a myriad of communities throughout the basin.

However, major tributaries such as Twentymile and Peters Creek in Nicholas County are being impacted by massive mountaintop removal mines.  Drainage from coal mines in these as well as other streams in the Gauley watershed degrades water quality in the basin.  Many fear for the future of the famed Gauley River if these drainages are allowed to continue – or worse, to increase in number.

Partners with American Rivers on listing the Gauley are the Appalachian Center for the Economy and the Environment and the Ohio Valley Environmental Coalition as well as the WV Highlands Conservancy.

“The Army Corps of Engineers must start to follow the science showing the devastating impacts throughout central Appalachia and put an end to mountaintop removal. Business as usual is destroying of one of the most biologically diverse and culturally rich areas in the world,” said Margaret Janes, Appalachian Center for the Economy and the Environment.

“Headwater streams that feed the lower reaches of the Gauley are no less healthy and thriving and worthy of protection than those that rise further upstream in our beloved Monongahela National Forest,” said Cindy Rank with the West Virginia Highlands Conservancy. “If we continue to allow companies to emaciate streams like Twentymile, Peters Creek and Muddlety the Gauley basin is in peril.”

“We can act now to protect the Gauley by stopping mountaintop removal,” said Vivian Stockman, with the Huntington, W.Va.-based Ohio Valley Environmental Coalition. “Not only will ending mountaintop removal protect the revenue generated by recreation and tourism around the Gauley, we will protect human health, too. Studies show that mountaintop removal mining is polluting streams to the point that people’s health is compromised.”

Collectively, the issues below have the potential to change the way mining is practiced in the Gauley River watershed and through­out Appalachia.

In March 2010, the U.S. Environmental Protection Agency (EPA) proposed new water quality guidelines for conductivity resulting from mountaintop removal mining. High conductivity harms aquatic life and can cause toxic algae blooms that destroy stream habitat. EPA must adopt this conductivity standard as regu­lation and apply the standard to all surface mining activity. The agency is accepting comments on the conductivity guidance until December 2010.

In addition, EPA must issue strong revisions to the national selenium water quality criteria guidelines and must offer clear guidance to states and the Ohio River Valley Water Sanitary Commission (ORSANCO) on how to implement them. States must adopt and enforce these standards. EPA must also work with the U.S. Army Corps of Engineers to complete the review of a list of 79 permits and prohibit destruc­tive valley fills or harmful pollution discharges into streams. These agencies must set limits on the cu­mulative damage from multiple valley fills and pollu­tion discharges to watersheds.

Ultimately, EPA and other regulatory agencies must prohibit the further destruction of Appalachian riv­ers from the practices associated with mountaintop removal mining in order for rivers like the Gauley to remain healthy for communities, businesses, industry, and tourism.

The public is being urged to contact Lisa Jackson/EPA and Jo Ellen Darcy/Army Corps to issue critical new water quality safeguards and to ultimately prohibit further destruction of Appalachian rivers from mountaintop removal mining.

~~~~~

[RELATED NOTE: On May 24, 2010 the WV Highlands Conservancy and the WV Chapter of Sierra Club issued a notice of intent to sue FOLA Coal Company for violations of the Clean Water Act and Surface Mine Act at its FOLA #3 mine that discharges into a Boardtree Branch, a tributary of Twentymile Creek of the Gauley in Nicholas County.

In particular the results of water quality testing performed by the U.S. Environmental Protection Agency (EPA) just downstream from the valley fill in Boardtree Branch showed, under several measures, that the company’s mining operations have caused significant negative impacts and have harmed aquatic life in the stream.  EPA’s testing revealed levels of conductivity more than five times EPA’s benchmark for protecting stream health.  In addition, the testing revealed levels of acute toxicity for the stream over ten times EPA’s criteria for aquatic life protection, as well as chronic toxicity levels over six times the EPA criteria.

FOLA has sixty days to come into full compliance with the laws or we will file a citizens’ suit seeking civil penalties for ongoing and continuing violations and for an injunction compelling FOLA to come into compliance with the Surface Mine and Clean Water Acts.]

# 9 THIS YEAR IS THE MONONGAHELA RIVER.

THREAT: Natural Gas Extraction

Though there is much to be said about the major rivers in the upper reaches of the Monongahela River basin, this year American Rivers’ listing of the Mon focuses mainly on the threat of pollution by large amounts of water withdrawal for and discharge of untreated wastewater from Marcellus Shale gas well drilling in the portion of the river that spans the state border between Fairmont WV and Pittsburgh PA.

The Mon Basin is located within the region of the Marcellus Shale, a geological formation that lies between 5,000 and 8,000 feet below the earth’s surface.  Energy companies have already begun to extract the natural gas in the shale through a process known as hydraulic fracturing.  In this process, millions of gallons of water, often taken from streams, lakes, and rivers, are mixed with chemicals and injected deep into the shale to release the gas.  Furthermore, diminished flows caused by excessive water withdrawals can impair wildlife, recreation, and decrease a water body’s ability to dilute and assimilate pollutants from wastewater discharges.

Problems with drinking water and industrial equipment at power plants along the river during low flows in the fall of 2008 and the death of Dunkard Creek in 2009 put a spotlight on high levels of dissolved solids in the Mon River between northern West Virginia and southeastern Pennsylvania.

Partnering with American Rivers and the West Virginia Highlands Conservancy on this listing are the Pennsylvania based Center for Coalfield Justice and the West Virginia Rivers Coalition.

“Residents, landscapes, and waterways of the Monongahela River Basin and nearby areas are already suffering community disintegration and environmental destruction at the hands of longwall coal mining and other under-regulated fossil fuel industry practices. The futures of these regions may be grimmer still if our legislators and government agencies don’t take immediate action to implement better environmental protections for Marcellus Shale development,” said Emily Bloom with the Center for Coalfield Justice.

“This scale of this gas drilling boom has caught regulators by surprise, and the environmental problems associated with it are affecting millions of people.  State and federal governments must move quickly to put regulatory safeguards in place that protect our resources for the benefit of all,” said Shanda Minney with the West Virginia Rivers Coalition.

“Just as mountaintop removal coal mining is rightfully known as ‘strip mining on steroids’, horizontal drilling and hydrofracing deep in the Marcellus Shale is surely ‘gas drilling on steroids’“ said Cindy Rank of the WV Highlands Conservancy.  “Enforceable standards are needed to control fresh water withdrawals, the use and disposal of chemically laced frac and flowback water, and the treatment and disposal of the brine and NORMs (naturally occurring radioactive material) in the produced water.”

The listing urges people to support the states of West Virginia and Pennsylvania in efforts to revise regulations for natural gas extrac­tion in the Marcellus Shale, particularly with regard to al­lowable concentrations of total dissolved solids in waste­water discharges. The Departments of Environmental Protection for both states must promptly issue and enact revised regulations to set wastewater standards that adequately protect the aquatic life and drinking water supplies for communities within the Marcellus region.

The public is also encouraged to support federal legislation called the Fracturing Responsibility and Awareness of Chemicals (FRAC) Act of 2009 (S. 1215/H.R. 2766) introduced by Senator Rob­ert Casey (D-PA), Senator Charles Schumer (D-NY), Representative Diana DeGette (D-CO), Representa­tive Maurice Hinchey (D-NY), and Representative Jared Polis (D-CO). This legislation would repeal the exemption for hydraulic fracturing in the Safe Drink­ing Water Act and require disclosure of the chemicals used in hydraulic fracturing fluids. The FRAC Act must be passed by Congress to improve the protection of drinking water throughout the Marcellus Shale region.

To learn more please read the documents below.

American Rivers Press Release on The Gauley River
Gauley River Action Alert
Gauley River Factsheet

American Rivers Press Release on The Monongahela River
Monongahela River Action Alert
Monongahela River Factsheet

Please visit the American Rivers web site where you can take action now and send a message on-line.

Contact: Donna Heron 215-814-5113 / heron.donna@epa.gov

Comment Period on Spruce No. 1 Mine Extended to June 4, 2010

PHILADELPHIA (May xx, 2010) – The U.S. Environmental Protection Agency is extending the deadline for public comment on its proposal under the Clean Water Act to significantly restrict or prohibit mountain top mining at the Spruce No. 1 surface mine in Logan County, W. Va. from June 1, 2010  to June 4, 2010 because a government website being used to submit comments will be out-of-service from May 29 till May 31, 2010.

The federal eRulemaking Portal (http://www.regulations.gov), the recommended method of comment submission, will undergo a scheduled maintenance outage and will be unavailable from Saturday, May 29, 2010, from 12 a.m. until Monday, May 31, 2010 at 11:59 p.m. Eastern Daylight Savings Time.

Written comments can also be submitted until June 4 on the Spruce No. 1 Mine Proposed Determination, identified by Docket ID No. EPA-R03-OW-2009-0985, by one of the following four methods:

1. E-mail: ow-docket@epamail.epa.gov. Include the docket number, EPA-R03-OW-2009-0985, in the subject line of the message.

2. Mail: ‘‘EPA-R03-OW-2009-0985, Spruce No. 1 Surface Mine,’’

U.S. Environmental Protection Agency
EPA Docket Center Water Docket, Mail Code 28221T
1200 Pennsylvania Avenue, NW
Washington, DC 20460

3. Hand Delivery or Courier:

Director, Office of Environmental Programs
Environmental Assessment and Innovation Division
U.S. Environmental Protection Agency, Region III (3EA30)
1650 Arch Street,

Contact: Donna Heron 215-814-5113 / heron.donna@epa.gov

Information for Those Attending the Spruce No. 1 Mine Public Hearing on May 18 in Charleston, West Virginia

PHILADELPHIA (May 12, 2010) – There is still time for advanced sign-up to attend and/or speak at the Environmental Protection Agency’s May 18 public hearing, which will be held at the Charleston Civic Center – South Hall, 200 Civic Center Drive, Charleston, W.Va.

People wishing to sign up in advance can do so over the internet by going to http://www.epa.gov/region3/mtntop/spruce1hearing.html and clicking on the link, or by calling 877-368-3552.

Advanced sign up is not required to attend or speak at the public hearing. However, because of the large turnout expected, EPA is recommending that people wishing to attend the public hearing, and especially those who wish to speak, sign up in advance. Those who sign-up in advance will have expedited entrance into the Civic Center and should look for that line when arriving. Photo identification will be required.

On-site registration will be available at the Civic Center beginning at 5 p.m. Advanced sign-up via the internet or phone will end at noon on May 18.

The hearing will begin at 7 p.m. and end no later than midnight due to a City of Charleston ordinance. In order to accommodate as many speakers as possible during that time, each speaker will be allowed a maximum of two minutes and time will be strictly monitored. Those who have signed up to speak in advance will speak first.

Everyone entering the Civic Center will be required to show a photo I.D. and go through a metal detector. No large bags or backpacks will be permitted. Also, pocket knives, scissors or other objects that could be used as weapons are prohibited.

Posters or signs will not be allowed inside the Civic Center per facility rules. City ordinances prohibit loud speakers or other amplifying devices. Recording devices are also not permitted inside the Civic Center.

All oral comments provided at the public hearing will be recorded by a court stenographer. And all comments – both oral and written — will be considered by the EPA in making its decision.

Written comments will also be accepted at the public hearing. Written comments can also be submitted until June 1 on the Spruce No. 1 Mine Proposed Determination, identified by Docket ID No. EPA-R03-OW-2009-0985, by one of the following four methods:

1. Federal eRulemaking Portal (recommended method of comment submission): http://www.regulations.gov.

Follow the online instructions for submitting comments.

2. E-mail: ow-docket@epamail.epa.gov. Include the docket number, EPA-R03-OW-2009-0985, in the subject line of the message.

3. Mail: ‘‘EPA-R03-OW-2009-0985, Spruce No. 1 Surface Mine,’’

U.S. Environmental Protection Agency

EPA Docket Center Water Docket, Mail Code 28221T

1200 Pennsylvania Avenue, NW

Washington, DC 20460

4. Hand Delivery or Courier:

Director, Office of Environmental Programs

Environmental Assessment and Innovation Division

U.S. Environmental Protection Agency, Region III (3EA30)

1650 Arch Street,

Philadelphia, PA19103

************************

Be sure to read:

COMMENTING ON Spruce #1/PIGEONROOST PERMIT DUE:JUNE 1

FLYING OVER SPRUCE FORK

By Cindy Rank

Oldhouse Branch

I suppose when a person stays someplace long enough many things come around full circle at least once.

After nearly 40 years in West Virginia I feel that way a lot these days and it’s certainly how I felt recently when I was treated to a bird’s eye view of what’s left of the town of Blair in Logan County WV and the old Dal-Tex operation that looms over the town, a site I first visited on a state sponsored mine tour in 1994 and one that Penny Loeb featured in her Sheer Madness article in US New & World Report of August 1997.

From there Southwings pilot Susan Lapis flew us over Route 17 and the short section of widened road by Sharples that now hosts long rectangular treatment ponds that are part of the Mountain Laurel deep mine/prep plant complex at the mouth of Seng Camp Creek.

Portions of the upper reaches of Seng Camp Creek are included in the Spruce #1 mine permit that became the focus of our 1998 Bragg v. Robertson litigation. For many reasons outlined elsewhere in this issue of the Voice the US Environmental Protection Agency (EPA) is proposing to veto the Clean Water Act 404 fill permit for the Spruce #1 mine.

Seng Camp is on the northern edge of the 2,278 acre Spruce #1 permit and is one of three streams targeted for filling as part of the Mingo Logan mine. (Pigeonroost and Oldhouse Branch are the other two.) The Seng Camp Creek valley fill area was initially disturbed in January 2007 – before we discovered that the Army Corps of Engineers had issued the 404 fill permit and before we could file an objection with Judge Chambers to include it with our ongoing 2005 litigation about similar permit actions in southern West Virginia.

Because work had begun in Seng Camp, the best we could achieve was a stand-still agreement with the company that they would only mine in that limited portion of the Spruce #1 mine while the courts worked through the rest of the legal questions. ….. In the summer of 2008 circumstances were such that we were unable to object to an expansion of the mining to the uppermost portion of the ridge between Seng Camp and Pigeonroost Creek. Though the expansion would remove portions of the ridge, the absence of any discernable “jurisdictional” waters in the new area left us no basis for legally challenging the seventy some acre expansion.

I regret to this day that we were unable to prevent Mingo Logan from extending the operation into the ridge separating Seng Camp Branch and Pigeonroost …. And yet I was heartened last week to see Pigeonroost still undisturbed and forested for it’s full two and a half mile length… and Oldhouse Branch to the south as well, and even portions of Seng Camp as yet untouched.

It is my hope that readers of the Highlands Voice and hundreds of other sympathetic minded friends will chime in with even the briefest of comments encouraging EPA to deny any additional movement into these untouched tributaries of the already severely impacted Spruce Fork of the Little Coal River.

Information on how to file comments supporting EPA’s proposed veto can be found on page 4 of this issue of The Highlands Voice.

The U.S. Environmental Protection Agency (EPA) will hold a public hearing regarding its proposal under the Clean Water Act to significantly restrict or prohibit mountain top mining at the Spruce No. 1 surface mine in Logan County, W. Va. The project was permitted in 2007 and subsequently delayed by litigation. The Spruce No. 1 mine would bury over 7 miles of headwater streams, directly impact 2,278 acres of forestland and degrade water quality in streams adjacent to the mine.

EPA’s proposed determination comes after extended discussions with the company failed to produce an agreement that would lead to a significant decrease of the environmental and health impacts of the Spruce No. 1 mine.

The purpose of the public hearing is to obtain public testimony or comment on EPA’s proposed 404 (c) action on the Spruce No. 1 Mine project.

WHO: U.S. Environmental Protection Agency Region III representatives

WHAT: Public hearing on EPA proposal for Spruce No. 1 surface mine

WHEN: May 18th, 2010 at 7:00 p.m.

WHERE: Charleston Civic Center (South Hall) Charleston, W.Va. 25301

Registering ahead of time is recommended:

Advance sign up is not required to attend or speak at the public hearing. However, because of the large turnout expected, EPA is recommending that people wishing to attend the public hearing, and especially those who wish to speak, sign up in advance. People wishing to sign up in advance can do so over the internet by going to http://www.epa.gov/region3/mtntop/spruce1hearing.html and clicking on the link, or by calling 877-368-3552.

To accommodate as many speakers as possible, each speaker will be limited to two minutes. There also will be an opportunity to sign up on-site the day of the public hearing. Speakers at the public hearing will be in order of sign up.

In addition, people wishing to provide comment may do so in writing. If you would like to submit written comments you may do so at the public hearing or on-line at www.regulations.gov (search for EPA-R03-OW-2009-0985).

More information on Clean Water Act Proposed Determination:

The Clean Water Act gives EPA authorization to deny the Spruce No. 1 Mine permit or add restrictions that the mine owner would be required to follow. The part of the Clean Water Act that grants this authorization is known as 404 (c). This section authorizes EPA to restrict or prohibit placing certain pollutants in streams, lakes, rivers, wetlands and other waters if the agency determines that the activities would result in “unacceptable adverse impacts” to the environment, water quality, or water supplies.

This authority applies to proposed projects as well as projects previously permitted under the Clean Water Act. A final decision to restrict or prohibit the Spruce No.1 Mine will be made at a later date by EPA’s national headquarters based on a recommendation from the regional administrator of EPA’s mid-Atlantic region, public comments, and discussions with the Army Corps of Engineers and the Mingo Logan Coal Company, the mine owner.

Relevant documents, including the EPA regional administrator’s proposed determination can read and reviewed on EPA’s website at: www.epa.gov/region3/spruce1.html.

By Bill Howley

We now see clear evidence that the West Virginia coal industry is in decline. This is not to say that the industry is going away any time soon. WV coal production peaked at 181 million tons in 1997 (www.minesafety.org/historicprod.htm). Production in 2008 was 165 million tons. Like the arrival of peak oil production around the world, the passage of the peak of the West Virginia coal resource is now clear.

Here are the changes peak coal has wrought:

1) For the last 20 years, coal mining in WV has metastasized into mountaintop removal in which 40 feet of unproductive overburden must be removed to mine coal seams as thin as 18 inches. The WV Legislature actually created a tax credit on the state’s severance tax that was available to mountaintop removal operations for mining these “thin seams”. Mountaintop removal requires massive amounts of diesel fuel, for both equipment and blasting. When diesel gets too much more expensive, mountaintop removal will no longer be profitable. Peak coal production is now subject to the laws of peak oil.

2) For the last 20 years, underground coal mining has only been economically viable with the removal of the UMWA from most WV mining operations. Mining coal with miners who can protect themselves is more expensive than non-union mining in which miners live in constant fear of losing their jobs.

3) Both mountaintop removal mining and underground mining only remain economically viable in WV if state and federal regulators subsidize mining by radically reducing enforcement of laws and regulations. Corporate giveaways and tax cuts have also undermined enforcement as all regulatory agencies are forced to reduce inspection staff.

4) Coal mining in West Virginia only remains economically viable if state political leaders and our Congressional delegation constantly browbeat career regulators into allowing coal operators to break the law. No career regulator will stick his neck out to fight the people who provide his/her paycheck. Both Davit McAteer and Jack Spadaro are good examples of regulators who were pushed out of federal agencies because they did their jobs too well.

5) Governor Manchin, the WV Public Service Commission, Congress and the Federal Energy Regulatory Commission design new schemes, like PATH and TrAIL, to prop up demand for coal and to sustain obsolete coal-based electrical power technologies by subsidizing and promoting Project Mountaineer’s “coal by wire.” Pushing crazy coal projects like “clean coal”, “coal to liquids” and “coal gasification” starves real non-coal alternatives of needed investment, insuring that coal maintains its “low price” in the marketplace.

Peak coal is a simple economic proposition. The quality of the coal resource in WV is now so inferior, compared to what it was 40 years ago, that the mining industry must push more and more of its costs off onto communities where it operates and the miners who actually do the work. Coal companies can’t do anything about the decline of their resource so they continue their push to viciously cut costs.

A.T. Massey and Don Blankenship as well as others in the industry realized in the 1980s that coal mining in West Virginia could only continue if the cost of mining coal were cut radically by destroying the UMWA in the state and by massively expanding new mountaintop removal techniques that would physically devastate southern West Virginia. Unless costs of extraction could be driven down, largely by eliminating miners and mining jobs, coal mining in WV would not be economically viable.

The Massey Energy Frankenstein monster is a prime example of what was created by all of the West Virginia politicians and federal elected officials, with the notable exception of Ken Hechler, who actively promoted the industry’s outlaw agenda with regard to federal law and safety regulations.

Instead of drawing a line and facing the realities of peak coal, West Virginia’s political leaders chose to support the industry’s agenda to drive down costs of production without regard to our state’s welfare. The chickens have come home to roost.

It is actually a rather simple mathematical equation. As the coal seams get more expensive to mine and poorer in quality, other costs, such as mine safety and compliance with surface mining laws, must be reduced if the profits of mining companies are to be maintained. These profits do not have to be huge, they just have to be high enough to produce a return on investment that can compete with other industries.

If the West Virginia coal industry cannot generate a high enough return on investment, the banks, pension funds and equity funds will simply invest their capital elsewhere. Instead of protecting West Virginia from the coal industry’s race to the bottom, and insuring a measured shift in the state’s economy away from coal, our political leaders have chosen to bleat about the “war on coal”, while miners are killed and communities and our lands are destroyed.

So “coal by wire” power lines, killing miners and destroying southern West Virginia are all part of the same system of subsidies that have been piled on the coal industry (including the electrical power giant AEP and Allegheny Energy, soon to be swallowed by another giant, FirstEnergy).

Since the 1980s, we have seen the face of peak coal in West Virginia, and it isn’t a pleasant face. Things will only get worse, as the coal and electrical industries devour more land and destroy more lives.

(A similar version of the above article was posted April 17, 2010 on Bill’s blog THE POWER LINE, a view from Calhoun County. For more thoughtful posts about the recent surge of activity to build new huge power lines across WV see www.calhounpowerline.wordpress.com)