Appeals court backs EPA’s veto of Spruce Mine


Law gives agency power over permits, 3-0 ruling says
By Ken Ward Jr.

CHARLESTON, W.Va. — The U.S. Environmental Protection Agency was clearly within its legal authority when it rejected a permit for one of the largest mountaintop removal mines in West Virginia history, a panel of three federal appeals court judges ruled Tuesday.

The U.S. Court of Appeals for the District of Columbia panel — made up of three Republican-appointed judges — reversed a lower court ruling that had thrown out the EPA’s veto of the Clean Water Act permit for Arch Coal Inc.’s Spruce Mine in Logan County.

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Written by Administrator in: EPA,Mountaintop Removal |

END the violence of mountaintop removal coal mining in Appalachia. Listen to the SCIENCE!


Mr Obama listen to the science and END the violence of mountaintop removal coal mining on people. Appalachians are tired of seeing people (including kids) die of cancer for coal.


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Written by Administrator in: Mountaintop Removal |

WOW! Patriot Coal to phase out mountaintop removal

Cindy Rank, longtime mining chairwoman of the Highlands Conservancy, said today, “We’ve been saying for many years that if companies had to pay the real costs of mountaintop removal, it would not be economically feasible. Hopefully, it’s now become clear that when coal companies are required to prevent illegal selenium pollution and pay the costs for cleanup themselves, it simply doesn’t make economic sense to continue this destructive form of mining.


HUNTINGTON, W.Va. — Patriot Coal has agreed to phase out mountaintop removal and other forms of strip mining in a move Patriot officials say is in the best interests of the company and the communities where it operates.

In a deal with citizen groups, Patriot said it would never seek new permits for large-scale surface mining operations, according to details of the settlement revealed during a federal court hearing here this afternoon.

St. Louis-based Patriot can continue some existing and smaller mining projects, but must also implement a cap on surface production and eventually stop all strip mining when existing coal leases expire.

Read more…


Read more on Coal Tattoo

Strip mining phase-out deal leave some speechless


Written by Administrator in: Mountaintop Removal |


By Dave Cooper

An American hero has passed away. Larry Gibson, the “Mountain Keeper” from West Virginia who fought to save his family’s ancestral land on top of Kayford Mountain for over 25 years died of a heart attack on Sunday on his beloved mountain. A public memorial service will be announced at a later date on Larry’s Keeper of the Mountains Foundation website. Please visit the site and make a donation in memory of Larry.

When I first met Larry in March, 1998 I wasn’t too sure what to think of him. But we hit it off, and he ended up changing my life. I visited Larry’s mountain shortly after hearing him speak at a Kentucky Sierra Club meeting, and Im still working on the mountaintop removal issue 14 years later. He changed many other lives, too.

I wanted to write  something to you all because I knew that many people across the country still may have not heard the news about Larry – and I’ve struggled about what to write.

Larry was such an inspiring, complex, awesome, dogged and determined person that writing a proper tribute to him is really difficult. So I’ve decided to just let Larry’s words speak for him.

I called Larry’s answering machine today, and it was good to hear his voice one last time:

We are the keepers of the mountains. Love them or leave them, just don’t destroy them. If you dare to be one, too, call (304) 542-1134 or email larry. gibson@mountainkeeper.org

Thank you very much.

Although he never got a lot of formal education, Larry could be almost poetic sometimes. When we toured together on the Mountaintop Removal Road Show, he would always ask his audience:

“What do you have in your own circle of life that is so precious that you cannot put a price on it? What would it be? And if someone tried to come and take it from you, what would you do – how far would you go to stand for it? For me it was my land. For me, it was my mountain.”

In the excellent ABC Nightline episode “Digging Deep: The Cost of Cheap Energy” that aired in 1999, Larry met with ABC’s Barry Serafin and took him to the edge of his mountain, and with tears in his eyes, gazed out on the destruction:

“I don’t care if it’s a coal company, oil company or chemical company – I’ll go anywhere and talk against the destruction of what’s happening here. I’ll go anywhere … how can you do this to your own back yard? Where you gonna play? I used to play here. Used to…”

Larry could also be charming and funny. I heard him once tell a pretty West Virginia girl “You’re as pretty as a shiny new nickel” He could make people laugh, and on a good night he could make his audience cry. Sometimes he came across to his audiences as an angry or bitter man, but he always had something interesting to say, he was just full of energy – and sometimes he could be quite profound.

Larry took Nashville filmmaker Jeff Barrie on a tour of his family cemetery on Kayford for the film “Kilowatt Ours,” when suddenly a blast went off on the nearby mine site. Hurrying to the edge of the mountain, Jeff captured with his camera the huge cloud of dust rising above the moonscape as Larry pondered his situation.

“People, a lot of people ask me if I have a picture of the mountain before it was destroyed. For one, you can’t take a picture of a mountain while you’re on it, but for two, Lord have mercy, why should you take a picture of a mountain? It’s gonna be there forever. At least I thought …”

Larry said some things that I never could figure out. He would say “Golly nez” as an expression of wonderment or surprise – it was a mild curse that he used instead of “Gosh darn.” I’ve never heard anyone else, anywhere use that expression. Golly nez, Larry was an original.

For years, coal companies tried to intimidate Larry and to run him off his land because he had 37 or 38 seams of coal in the mountain below his cabin. Someone shot up his cabin, and someone tried to hang his dog. Massey coal thugs would come and try and disrupt his family picnic gatherings on the mountain. He’d say, “I’ve had 137 acts of violence on my land” and I would wonder, “Why are you keeping count?”

Occasionally when he was feeling really tired or frustrated, Larry would let loose and curse, like the time when he saw that a bulldozer operator had driven a dozer through the old Stover Cemetery (on land adjacent to Larry’s). I can’t remember who was there when Larry first saw this – I think it was one of the Mountain Justice members touring Kayford with her father and mother. But she told me that Larry was so angry at the dozer operator for his desecration of a known West Virginia family cemetery that he almost went and got his gun.

One of the most important figures in Larry’s life was Ken Hechler, the legendary former Congressman and West Virginia Secretary of State who has been a lifelong crusader against strip mining abuses. Ken is very well-respected in West Virginia – and he was the only member of Congress who marched with Dr. Martin Luther King while in office. Ken was Larry’s mentor, and Larry once told me that when Ken told him something, “You better believe I listen.” Ken inspired Larry and he taught him lessons from the civil rights struggle about the importance of non-violence in the campaign against mountaintop removal. And over the years Larry became a much better speaker and community leader.

He walked across West Virginia with Julian Martin of the West Virginia Highlands Conservancy in 1999 to bring attention to the MTR issue. Larry was a constant presence at rallies, meetings and gatherings, from DC’s “Appalachia Rising” to the Sierra Club National Board of Directors meeting in San Francisco. He even went to South America to talk to people about his mountain, and he reached out to people everywhere he went to help build the movement. He was even invited to New Guinea.

Early in the fight against mountaintop removal, Larry was once criticized because his bumper sticker said “I am the Keeper of the Mountains,” like he was a lone warrior in the cause. Larry changed it to “We are the Keepers of the Mountains” to be more inclusive, and over the long run probably did more than any other one individual to bring people into the anti-MTR movement and make them feel welcome and valued. He would call and chat just to say hello. I was always glad to talk to him.

Larry fought the good fight. He fought longer and harder against mountaintop removal than anyone else ever could, and he went down swinging. Some people said Larry reminded them of “The Lorax” from the Dr. Suess book, and I think they are right – the Lorax spoke for the trees, and Larry spoke for the mountains – and they both had that same little white moustache …

Larry was so generous with his time, and he always treated everyone who came to visit his mountain equally, whether it was a group of 10 high school students from a local school, or whether it was Mike Wallace of 60 Minutes.

Right now, Larry is happily roaming the green, unscarred mountains of West Virginia of his youth – “the mountains with no boundaries, no limits” as he described them in the film “Mountaintop Removal.” Larry is in a better place, and he probably has a baby squirrel in his pocket.

I’m especially happy that Larry was able to find some peace of mind late in life – he met a gentle and wonderful lady named Carol, and they were happily married for years. They were so sweet together.

What do we do now without Larry? We will keep on fighting to save the land and people of Appalachia “for everyone that comes after me and after you.”

And this is an incredibly important struggle. When you look at the issue of global warming, some of the predictions are very dire indeed. Burning coal is at the heart of the climate crisis, and if some experts are right, we are fast approaching a “tipping point” beyond which rising global temperatures cannot be reversed, no matter what we do. The earth will just keep warming and warming until…

Who are the people that are trying to stop this madness? There really aren’t very many of them, and there are even fewer that are actually willing to put their own life and safety on the line to help stop the destruction – the destruction of the very life support systems that are keeping us all alive.

Larry was one of those people. He was fearless and he was tireless.

I think that if the human race is able to survive runaway global climate change, there will one day be statues and monuments to the heroes of the planet like Larry Gibson, Judy Bonds, Laura Forman, Ken Hechler, Al Gore, James Hansen, Bill McKibben, Harry Caudill, John Cleveland and so many more – who have devoted their lives to stopping the worst ravages of coal. All of these people will be in the history books, and future students will read about them wonder why more average people didn’t try and help stop mountaintop removal and runaway climate change. They will look at the photos of RAMPS and Mountain Justice activists being arrested for non-violent civil disobedience with the same sense of wonder and disbelief that we feel today when we see the photos of civil rights protestors being attacked by Sheriff Bull Connor’s dogs. They will wonder – how could so many people have stood by and let the mountains be destroyed? Why didn’t more people get involved?

Will you join us? We need more Mountain Keepers, like Larry – do you dare to be one, too?

Larry Gibson being toted off to the hoosgow in March,
2007. He and about a hundred citizens had been at the
Governor’s office protesting a coal processing facility
close to an elementary school in Raleigh County, West
Virginia. Larry and twelve others were arrested on nonviolent
civil disobedience related charges.



There will be a memorial service for Larry Gibson on Sunday, October 14 from 2 to 6 p.m. at the Charleston Municipal Auditorium, located on the corner of Virginia and Truslow Streets, across from the Town Center Mall in downtown Charleston, W. Va.

The program will feature family, friends, prominent activists, southern West Virginia residents, musicians and preachers.

Larry, 66, died of a heart attack on Sunday, September 9, while working on his family’s land on Kayford Mountain, which he spent the last decades of his life protecting from mountaintop removal. On September 13, Larry was laid to rest in a private funeral on the mountain that he loved. He is survived by his wife, Carol, two sons Cameron and Larry, Jr. and his daughter, Victoria.

Larry’s family has requested that those wishing to express condolences make donations to the Keeper of the Mountains Foundation. Cards and letters to family can be mailed to the Keeper of the Mountains Foundation office at 179 Summers St, Suite 234, Charleston, WV, 25301.



Visit Kayford Mountain and/or Mud River Mountain south of Charleston to see mountain top removal (MTR) up close. Bring lunch for a picnic on Kayford mountain. Call in advance to schedule. Julian Martin (304) 342-8989; martinjul@aol.com



Ramblin’ the Ridges


By Cynthia D. Ellis


My fellow hikers and I trudged uphill, through a hollow. We were in the Kanawha City section of Charleston for a trail club outing in the 60 acre Wallace-Hartman Preserve. Fellow hikers said there was a Dunlap cemetery at the edge. Dunlap is my maiden name and Daddy’s home place was not too far away. After about 2 miles we came alongside a municipal landfill, with its artificial knolls and hillocks covered over and with methane collecting apparatus. Nearby was a small clearing with a few new headstones and a sprinkling of old ones. The graves faced east, in the traditional way, to be ready for the second coming.

None of the names were any I recognized from what I know of that side of the family. But they were intriguing still. One showed, “Sultanna Dunlap, 1864-1947,” — she lived from war to war. For me, as for many, there is this upwelling of interest in the older generations as we become older ourselves. We wonder how their chapters ended as we pass through the middle ones of our own.

It doesn’t even matter that “my” family cemetery was near a landfill. I have been able to visit a number of old family graves. Two lie alongside highways near Buckhannon, where cars and trucks thunder by. Two more are in sight of Interstate 79. Another burying ground has been enveloped by a country club, where greatgrandparents never heard of such a thing. Now the thunk-splat of tennis balls and the lights of the court are adjacent to the graves. Grandma Dunlap’s grave is near quieter Kanawha Terrace. She had eleven children; one infant died. She had the little bones moved from the home place grave on Davis Creek to a place next to her final one. At any rate, nearly all our family plots have somewhat less-than-peaceful setting.

I was lucky enough to know all four of my grandparents. There are some family pictures and other records. I can imagine the lives of those who came before. In Appalachia, many of us cherish memories and locations.

So we have a special tenderness for any who wish to honor the past and are hindered in that desire.

The recent eviction of families at the coal town of Rita, in Logan County, made me think of my good fortune to be able to see old cemeteries, and of the grief for some regional families who can no longer do that. How sad—to have your family cemetery isolated, locked off, or “relocated.” Sadly too, a number of mountain people, such as Larry Gibson and Dustin White, called “heroes” by some, have had to fight to try to save their graveyards. Legislation enacted in 2010 increased family access to cemetery sites, but extractive activities may still occur within 100 feet of the graves. We, in WVHC, have tried to help and will continue.

Nowadays people look to new traditions. There may be cremated ashes or no engraved stone to sit upon or conteAmplate. There may be a “Green Burial,” which would preserve the feeling of a location with a special connection to a loved one.

Today, some of us are very fortunate. There are those new choices, but also, although highways, landfills, and golf courses may intrude, we can still visit a grave—and remember. Our ties to family history have not been blasted, bulldozed, or drilled away.

Here’s one last thought— because Larry Gibson and I were about the same height, I could look him in the eye. But I will never match his stature when it comes to opening the eyes, minds, and hearts of people toward saving cemeteries.and mountains.



By John McFerrin

On September 8, 2012, the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, and the Sierra Club (WV Chapter) sponsored a conference in Morgantown on Wellness and Water: Health Impacts of Fossil Fuel Extraction. About 100 people attended.

The conference was a combination of scientific presentations about health impacts and eyewitness accounts of what it is like to live near mining or drilling operations.

The keynote speaker was Wilma Surber. She is a scientist, with degrees in microbiology and chemistry and president of a company that does environmental testing.

After a brief overview of how hydraulic fracturing works, she dove into the heart of her presentation: what one is likely to find when testing air and water near drilling sites. She also discussed the health effects of exposure to these chemicals.

The information in the presentation was grim. She said that the Wastes generated by the exploration, development and production of crude oil and natural gas are “exempt” by Federal law from being regulated as hazardous waste. Yet 10 to 70% of the large volume waste and 40 to 60% of the toxic associated waste are Hazardous by analysis.

Her presentation included a listing of the contaminants that are present in what are known as “produced water” or “produced fluids.” This is the water that is present along with the gas and is brought to the surface as part of the producing the gas. They included organic chemicals, heavy metals, sulphur containing compounds, salt water minerals, and radioactive materials.

Although there is much contention among people and companies, she listed several items where there is agreement. She said that the oil and gas industry admits that there are spills and leaks which contaminate Surface water, ground water resources, soils, and air. The industry also admits that there are failures of casing and cementing that cause these impacts upon water, soil, and air. Casing is a series of metal pipes that extends from the surface to the producing formation. Cementing is the cement that is inserted between the casing and the rock it passes through. It is supposed to seal off the casing from the surrounding rock and any groundwater it might contain.

The industry stops short of admitting contamination of groundwater as a result of fracturing.

She also discussed surveys of health impacts felt by people who live close to gas wells or compressor stations. She presented a list of some forty two conditions which people had reported.

Her conclusion was that shale gas development has resulted in human health impacts to a large number of individuals living and working in the areas of shale development as well as large quantities of environmental damage and disruption

She further concluded that state regulatory programs are not adequate to regulate and control the rapidly developing shale technologies being implemented within the individual states.

In addition to the keynote speaker, the conference featured experts and academics Jill Kriesky, Ben Stout, and Michael Hendryx.

Michael Hendryx, Jill Kriesky, and Ben Stout Photo by Chuck Wyrostock

Dr. Kriesky, of the University of Pittsburgh Graduate School of Public Health, talked about the health impacts of hydraulic fracturing. She included discussion of a recent legislation that inhibits physicians from sharing information about possible health impacts of fracking. She recommended that there be more studies of potential impacts, implementation of air and water monitoring regulations at fracking sites, strong chemical disclosure regulations, and a health registry and public health education programs.

Mr. Stout talked about the importance of data collection. He recommended that anyone in a fracking area test their water daily for conductivity. If the water becomes contaminated there will be an immediate and dramatic increase in conductivity. He is also building a database of background water quality data. This makes it possible to know what the water was like before fracking.

Dr. Hendryx talked about the health impacts of mining, particularly mountaintop removal mining. He said that he has authored or co-authored more than twenty studies in peer reviewed journals that documented public health problems for people living near mining operations. He said that the health risks are greater for people living near the mines. This is true even after considering other health risks such as smoking, poverty, obesity, age, or access to health care. He called the epidemiological data of health impacts “overwhelming” and said that mountaintop mining should be stopped.

The most moving part of the conference was the descriptions of the problem by people who live near mining or drilling. Theirs were stories of ordinary people, just minding their own business, living their lives when they were intruded upon by drilling, mining, road dust, or a compressor station. They were of choking dust, noise that makes sleep impossible, and illnesses that they and their families had never had before.

If you missed the conference you can see most of it by going to http://www.youtube.com/watch?NR=1&v=vjDBCyf8Ypo&feature=endscreen. That takes you to one of the presentation as well as links to other presentations. Follow all the links and you will have seen the whole conference (minus introductions, question and answers, directions to the bathrooms, etc.)



By John McFerrin

Four years ago we were treated to a series of television ads featuring dancing bugs, the bugs that critics of mountaintop removal strip mining were supposedly dedicated to saving. The ads made the unsupported claim that valley fills do nothing to permanently damage the habitats of aquatic insects. The subtext of the ads was ridicule of regulation of this kind of mining. Who in their right mind, the ad implied, would jeopardize the foundation of the state’s economy to save a bunch of bugs? As cute as the bugs (or at least their TV commercial dancing version) might be, why should society do anything to try to help them?

In addition to their factual inaccuracies (the bugs reported that valley fills didn’t cause them any hardship), the commercials were based upon a false assumption. They assumed that the bugs existed in isolation. Even were they to be wiped out, the commercial implied, there would be no great loss to society. Why bother regulating mountaintop removal strip mining just to save a bunch of bugs?

Such an assumption ignores the basic principal of ecology: it is all connected. Natural systems only work when they have all their parts. Start eliminating some parts-be they bugs, birds, bees, whatever-and the rest of it won’t work.

The Environmental Protection Agency recognizes this. In the Mountaintop Mining Valley Fills in Appalachia Final Programmatic Environmental Impact Statement it said:

Most of the streams discussed in this PEIS are considered headwater streams. Headwater streams are generally important ecologically because they contain not only diverse aquatic assembledges, but some unique aquatic species. Headwater streams also provide organic energy that is critical to fish and other aquatic species throughout an entire river.

The judicial system recognizes this, treating it as a fact accepted by all sides. In one of the cases on the legality of one aspect of mountaintop removal strip mining, one of the judges remarked
 Today’s decision will have far-reaching consequences for the environment of Appalachia. It is not disputed that the impact of filling valleys and headwaters streams is irreversible or that headwater streams provide crucial ecosystem functions.

At the time the commercials came out, there was a reaction from those who lived in communities where the mines were located. Typical was that of James Tawney, a West Virginia Highlands Conservancy member who wrote to The Highlands Voice:

I want to let everyone know that the other habitat that we’re fighting for is our habitat. You know, those of us who live with a valley fill in our backyard, or a slurry impoundment hovering above our communities, homes and schools, or have lost our well water because of blasting. That’s whose habitat we’re trying to save!

Now, four years later, the research has caught up with what the people knew all along: it is not just about bugs. The scientific evidence is piling up associating living near mountaintop removal sites with birth defects, low birth weight births, cancer, poor physical health, poor mental health, cardiovascular difficulties, and pulmonary difficulties. This may not be news to the people who live there.

What is new is the nature of the evidence. For years, if not decades, people in mining communities have been sitting around in their living rooms saying, “Sure is a lot of cancer around here.” Now we have careful study by serious researchers confirming that, yes, there is a lot of cancer around here, more than there is in communities not occupied by mountaintop removal mining. The same is true for the other health effects. The studies are published in academic journals, the kind of journals where articles are reviewed by other qualified researchers, a process designed to weed out reports of flawed studies or unsubstantiated claims. One of the more prominent researchers, Dr. Michael Hendryx, calls the epidemiological evidence of adverse health effects “overwhelming.” (See story on the facing page).

The studies do not answer the question of the exact mechanism by which the mining causes the health effects. They don’t say whether the disease is a result of bad water, bad air, noise, all of these, or something else. They just say that people who live near mining are less healthy than similar people living in similar communities where mining is not present.

In other words, what people have said all along is true: opposing mountaintop removal strip mining is not just fighting to save bugs.

Of the Order Ephemeroptera, from the Greek ephemeros meaning shortlived and pteron meaning wing. In its adult form it
may live only a day or two,
although in the immature,
larval stage it can live for a

Of the Order Phonius. It has a lifespan, thanks to Youtube, of four years and counting.

Old commercials never die; they just move to Youtube. To see the bug commercials, go to http://www.youtube.com/watch?feature=endscreen&NR=1&v=8ahRleExjY4 and http://www.youtube.com/watch?v=_fxsg601tuA . The Ohio Valley Environmental Coalition has collected studies on the health impacts of living in a community occupied by mountaintop removal mining. For links to the studies, go to http://www.ohvec.org/issues/mountaintop_removal/articles/health/index.html

Written by Administrator in: Mountaintop Removal,The Highlands Voice |


By Cindy Rank

When we last reported on the proposed Reylas Mine and valley fill in Bandmill Hollow of Dingess Run in Logan County (June 2012 Highlands Voice) mining was on hold while we awaited final briefing and closing arguments in our litigation challenging the adequacy of the 404 fill permit.

Since then court documents were filed, hearings held and the court denied our challenge and refused to block the permit.

It should come as no surprise that we’ve filed an appeal with the 4th Circuit Court of Appeals. However, without an injunction to prevent the company from mining before the appeal is heard, it is conceivable that mining could begin at any time. If the stream is disturbed our appeal is basically lost. made moot.

We (plaintiffs West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, Coal River Mountain Watch, and the Sierra Club) went back to the U.S. District Court for Southern West Virginia in Huntington to request an injunction while our appeal is pending.

On September 13th Judge Chambers issued an Order denying our request for an injunction to block Alpha Natural Resources and its subsidiary Highland Mining while the 4th Circuit considers our appeal. The Order did, however, allow 14 days for us to go to the 4th Circuit to request an injunction and put a hold on mining while that court considers the facts in the case…

Deadline for this issue of the Voice precludes reporting on anything beyond that so stay tuned.

Written by Administrator in: Mountaintop Removal,The Highlands Voice |


Some relief for spinning heads

By Mark ‘Buzz’ Belleville

A confluence of events over the past few years has reduced coal consumption in the United States to its lowest levels in decades. A recent string of court victories, however, has provided a lifeline to surface mining operations (commonly referred to as mountaintop removal) in Appalachia.

For years, about half of the electricity generated in the U.S. came from coal combustion. That number has dropped, somewhat staggeringly, to about one-third over the past two years. Appalachian coal companies have countered by nearly doubling the amount of their coal exports over the same time period. Reasons for the drop in domestic coal use are many, probably the greatest being the somewhat sudden abundance of cheaper and cleaner natural gas.

Industry also argues that regulatory efforts under the current federal administration have significantly contributed to decreased use of coal in this country. A handful of major new air quality standards that were delayed under the Bush administration have been proposed and/or implemented; there has been increased enforcement of mine safety standards after a 2010 disaster at the Upper Big Branch mine in West Virginia killed 29 miners; and there are continuing proposals to treat fly ash, a byproduct of coal combustion, as a “hazardous substance” under federal law.

Who’s on first

But it is the EPA’s attempt to utilize the Clean Water Act to make it nearly impossible for surface mining operations to dispose of the earth they displace into nearby valleys that directly targets surface mining operations prevalent in Appalachia.

The EPA purports to base its increased Clean Water Act enforcement on reports showing that Appalachian sites downstream of mountaintop-removal operations have significant increases in conductivity and hardness as well as sulfate and selenium concentrations. The coal industry pushed back, challenging the EPA’s Clean Water Act authority in federal court. In a series of three decisions over the past nine months, the U.S. District Court for the District of Columbia has sided with industry.

In the first decision, the court found that the EPA and the Army Corps of Engineers could not, by a memorandum of understanding, lay out a procedure whereby the EPA determines which discharge permit applications should be subject to enhanced environmental review.

The second decision focused on a particular permit that the Army Corps had issued to the Mingo Logan Coal Co. in West Virginia; the court found that the EPA lacked the authority to “veto” the permit once the Corps had issued it. And the final decision, rendered just recently, held that the EPA’s attempt to impose a “conductivity” water quality standard could not be done by a series of “guidance” papers.

A bit of background is needed to understand the recent court decisions’ impact on surface mining in Appalachia. The Clean Water Act, one of a series of major environmental laws passed in the early to mid-1970s, prohibits discharges into the waters of the United States without a permit. The EPA has authority over permits for the discharge of “pollutants,” while the Army Corps of Engineers has authority over permits for the discharge of “dredge” or “fill” material.

This makes sense. The act contemplates that the EPA is in charge of pollution-causing discharges (section 402), and the Corps is in charge of earth-moving discharges (section 404).

The problem for mountaintop removal is that while the displaced earth is clearly fill material under the CWA’s definition, it also contains pollutants that reportedly cause downstream contamination when the material is pushed off the mountain edges.

The U.S. Supreme Court, in a couple of decisions that have provided fodder for countless scholarly analyses, has determined that section 404 applies to, and that the Army Corps is the primary permitting authority for, disposal of earth from surface mining operations.

But the EPA still has a role to play. First, the EPA shares responsibility with the states to establish water quality standards, which in turn inform permitting authorities as they consider discharge permit applications. Moreover, the EPA has authority to prevent the Corps from issuing a discharge permit for a particular site when the EPA determines that it will have an adverse effect on municipal water supplies or wildlife or recreational areas. Importantly, the recent decisions do not undermine these aspects of EPA authority.

What the EPA cannot do, according to the recent decisions, is set water quality standards or determine enhanced environmental review by something less than formal rulemaking, or veto a section 404 permit after it has been issued by the Corps. So, is Appalachian surface mining out of the woods after these recent decisions? No. First, the appeals process needs to run its course. Second, even if the district court decisions survive — undoubtedly a win for Mingo Logan, which already has its permit in hand — it does nothing to undermine the EPA’s authority to stop future permits before they are issued. If anything, these recent decisions affirm the authority of the EPA to prevent, based on environmental concerns, the Corps from issuing such permits, so long as the EPA intervenes before their actual issuance.

Moreover, nothing in the decisions prevents the EPA from enacting regulations that codify both the conductivity water quality standard and the enhanced environmental review agreement between the EPA and the Corps.

Finally, and most important, the economic realities of natural gas abundance and renewable technologies, as well as the scientific realities of climate change, will determine coal’s (and surface mining’s) future far more than anything the EPA does.

Whether the EPA aggressively intervenes in section 404 permit issuance or engages in the rulemaking process to codify the conductivity water quality standard or the enhanced environmental review process for discharges into environmentally susceptible Appalachian streams will likely depend on the discretion of the occupant of the White House. But the truth is that there are forces far more powerful than EPA regulations driving the future of coal in Appalachia.

Mr. Belleville is a professor of sustainable energy law at Appalachian School of Law at Grundy, Va.. This article previously appeared in The Charleston Gazette.

Editor’s note: The cases Mr. Belleville discusses have all been covered at one time or another in The Highlands Voice. It’s just that there are so many cases flying around that it is hard to keep track of them and hard to see how they all fit together. In this article Mr. Belleville provides help doing this.

Written by Administrator in: Mountaintop Removal,The Highlands Voice |


By Ken Ward

Handed a negative ruling from U.S. District Judge Robert C.

Chambers on an Alpha Natural Resources mountaintop removal permit, citizen groups are now hoping the judge will block the mine temporarily – at least long enough for them to have a chance to get an appeal heard by the 4th U.S. Circuit Court of Appeals.

This morning, lawyers for the Ohio Valley Environmental Coalition and other groups asked Judge Chambers to issue an emergency injunction in the matter, arguing that if work begins at Alpha’s Highland Reylas Surface Mine, an appeal concerning the operation’s Clean Water Act “dredge-and-fill” permit might be pointless. Once the stream is buried, they feared, the case would be moot.

Alpha has apparently agreed to hold off any mining until Aug. 27, giving Judge Chambers time to schedule a more detailed injunction hearing next Thursday morning.

I’ve posted a copy of OVEC’s legal brief seeking the injunction here. The other parties – The U.S. Army Corps of Engineers and Alpha – have until early next week to file their responses.

Keep in mind that to get this type of injunction, OVEC’s lawyers will have to show: They are likely to succeed on the merits of their appeal, they are likely to suffer irreparable harm in the absence of the injunction, that the balance of equities tips in their favor, and that the injunction is in the public interest.

Long-time followers of mountaintop removal litigation know that the 4th Circuit has been where previous West Virginia court rulings – by Judges Charles Haden, Joseph R. Goodwin and Judge Chambers – aimed at curbing mountaintop removal go to be overturned (see here, here, here and here). But remember that the 4th Circuit now has six new members appointed by President Obama. The Baltimore Sun explained in a story late last year:

The federal appellate court that covers Maryland has for years been considered one of the more right-leaning in the nation, finding that women can be banned from a military institute, that the FDA can’t regulate tobacco and that confessions count even when suspects haven’t been read their rights, among other conservative opinions.

But the 4th Circuit U.S. Court of Appeals now appears to have taken a left turn.

“There’s been a marked change,” said Ilya Shapiro, a senior fellow at the Cato Institute, a libertarian think tank in Washington.

“Historically, this has been one of the most, if not the most, conservative circuits. Now it’s almost one of the most liberal.”

Note: This originally appeared in The Charleston Gazette. It is part of the Coal Tattoo blog that Mr. Ward does. To see the original and follow the links he mentions, go to http://blogs.wvgazette.com/coaltattoo/2012/08/16/groups-seek-to-block-alpha-permit-during-appeal/. For a more detailed discussion of what the Reylas litigation is all about, see the story in the June, 2012, issue of The Highlands Voice. The West Virginia Highlands Conservancy is also a party to the litigation.

Written by Administrator in: Mountaintop Removal,The Highlands Voice |

Health effects near coal and gas sites documented, discussed


By Pam Kasey

More than half of people surveyed who live near shale gas extraction or processing operations in Pennsylvania report experiencing respiratory impacts, memory loss, lethargy or throat irritation, alone or in combination, according to environmental scientist Wilma Subra.

A microbiologist and chemist, Subra previewed a study she is conducting with the nonprofit Earthworks at a conference titled “Water and Wellness: Health Impacts of Fossil Fuel Extraction,” held Sept. 8 in Morgantown.


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Mourning Keeper of the Mountains Larry Gibson, and the Appalachians He Defended


More than four years ago, decked out in his trademark yellow cap and shirt, Larry Gibson famously waited his turn at a political rally in Beckley, W. Va., and finally got the chance to ask then-presidential candidate Barack Obama whether he would defend the land and people of central Appalachia.

Few people in our country were so fearless in the face of political pressure, bankers, Big Coal backlash and even death threats; and fewer people had the inspiring impact of this determined mountaineer, who had spent the last two decades crisscrossing the country, leading protests and beseeching power brokers to defend his Appalachian mountains from reckless strip mining operations.

His message was simple and to the point: Love them or leave them, just don’t destroy them.

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(September 10, 2012) Yesterday, environmental activist Larry Gibson, creator of the Keeper of the Mountains Foundation, passed away at age 66. Devoting his life to saving the mountains he loved, his work began trying to save Kayford Mountain. Gibson worked to protect mountain tops throughout Appalachia.

Mountain top removal is a terrible practice that involves dynamiting away top soil and rock to expose coal seams. This method of surface mining leads to stream burial, contamination of watersheds, fish kills in freshwater systems, and increased local incidence of cancer and birth defects. Five percent of land surface area in the Central Appalachians have already been converted from forests into active and reclaimed surface mines. The Obama administration has taken steps to halt this habitat destruction, but much more needs to be done to save these mountains and the communities that live among them.

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West Virginia anti-mining crusader Larry Gibson dead at 66
Decades-long fight to save family’s land from mountaintop mining drew the praise of politicians and activists alike

Larry Gibson, who turned a lonely vigil to save a remote West Virginia mountain from coal mining into a national environmental cause, has died.

Gibson suffered a heart attack on Kayford mountain, land that had been in his family for generations and that he turned into a prime exhibit of the highly destructive practice of mountaintop removal. He was 66, an email from his Keepers of the Mountain Foundation said.

In his decades-long struggle, Gibson brought national attention to mountaintop removal – described by activists as strip mining on steroids for the epic destruction it visits on mountains and streams.

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Written by Administrator in: In Memory and Honor of,Mountaintop Removal |

Judy’s Plank: Democratic Party Platform Must Call for End to Mountaintop Removal Crime


The Democrats have nothing to lose. And everything to gain–especially the health and lives of residents in the coal mining areas of central Appalachia.

Calling it “Judy’s plank,” in honor of beloved West Virginia mountaineer Judy Bonds, whose untimely death in 2011 served as a wakeup call to the mounting humanitarian and health care crises from mountaintop removal mining, the Democratic Party platform should officially include a commitment for an immediate moratorium on the devastating form of strip mining at their national convention in Charlotte on September 4th.


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Written by Administrator in: Mountaintop Removal |

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