West Virginia Highlands Voice

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

MAY 18^th:  EPA to Hold Public Hearing on the Proposed Spruce No. 1 Mine Project in Logan County, W.Va.

PHILADELPHIA (April 27, 2010) – The U.S. Environmental Protection Agency today announced that it 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 in

Logan County, W. Va.

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

WHERE:         Charleston Civic Center (South Hall)

200 Civic Center Dr., 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 viewed on EPA’s website at www.epa.gov/region3/mtntop/spruce1.html.

Link to EPA Press Release on Spruce Mine Proposal:

http://yosemite.epa.gov/opa/admpress.nsf/0/D19F832B77DBB0AF852576F200567BA5

For Immediate Release — April 27, 2010

Contacts: Oliver Bernstein, Sierra Club, 512-477-2152
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
Raviya Ismail, Earthjustice, 202-667-4500 x 221 or 202-841-7619 (cell)

Over 3,000 Days of Permit Violations in 21 Months Reflect Pattern of Illegal Pollution

Charleston, WV — The Sierra Club, Ohio Valley Environmental Coalition, Coal River Mountain Watch, and the West Virginia Highlands Conservancy took legal action today with representation from Earthjustice to hold five coal companies — all subsidiaries of Massey Energy — accountable for thousands of violations of the Clean Water Act and surface mining laws associated with the mining operations of its subsidiaries in West Virginia.

“Massey puts profits before people in communities,” said Judy Bonds of Coal River Mountain Watch. “Massey is an outlaw company that continues to show contempt for the people of Appalachia.”

The groups are pursuing Massey (America’s fourth largest coal company) and its subsidiaries in court in the Southern District of West Virginia for allegedly violating permit limits by dumping toxic aluminum into waterways from as many as 16 mines covered by seven Clean Water Act permits in West Virginia. Very high aluminum levels can be toxic to fish and other aquatic life and have been linked to bone and brain diseases such as Alzheimer’s and Parkinson’s disease, and studies show that high aluminum levels pose high risks for people living with kidney disease.

The Massey subsidiaries involved are the Elk Run Coal Company, Independence Coal Company, Marfork Coal Company, Peerless Eagle Coal Company, and Power Mountain Coal Company. Some of the mines are also violating permit limits for other pollutants including iron, pH, and suspended solids. In total, these mines racked up approximately 3,300 days of permit violations in the period from April 2008 through December 2009. All of these violations appear to be ongoing.

“Massey’s water violations seem as widespread as their safety violations,” said Dianne Bady, Co-Director of the Ohio Valley Environmental Coalition in Huntington, West Virginia. “This lawsuit is a part of our larger efforts to protect human health in the coalfields.”

In January 2008, Massey agreed to pay $20 million in penalties to settle claims brought by the federal government over pollution from its coal mines in West Virginia and Kentucky. The government had identified over 60,000 days of violation during the period from January of 2000 through March of 2006.

“It’s high time Massey started paying the costs of its coal operations,” said Jim Sconyers, Chair of the Sierra Club’s West Virginia Chapter. “Our streams and communities are sick of having Massey pass the costs of coal mining on as toxic pollution.”

“It appears even previous large fines have done little to deter Massey from its ongoing reprehensible violations of the Clean Water Act,” said Cindy Rank of the West Virginia Highlands Conservancy. “If it weren’t so outrageous we all could sit back and let the children of tomorrow deal with the problems and live with the polluted waters that this company will leave in its wake. But it is outrageous and illegal to boot.”

A copy of the filing can be found at http://bit.ly/bgfFV4

###

–
Oliver Bernstein
Senior Communications Strategist
Sierra Club
Phone: 512.477.2152
Cell:  512.289.8618

Contact: Roy Seneca seneca.roy@epa.gov, 215-814-5567

PHILADELPHIA (April 21, 2010) — The U.S. Environmental Protection Agency announced $800,000 in brownfields grants to help assess and clean up abandoned industrial properties in West Virginia.

“Brownfields initiatives demonstrate how environmental protection and economic development work hand-in-hand,” said Shawn M. Garvin, regional administrator for EPA’s mid-Atlantic region.  “Along with generating jobs, these grants will help West Virginia communities convert vacant industrial properties into assets for the community, the environment, and the economy.”

The West Virginia grants include:

·    $200,000 to the Fayette County Commission to assess and prioritize brownfields properties throughout Fayette County, an area that has a seen a steep decline in industrial activity related to coal mining, hardwood timber harvesting and processing, and rail transportation.  To date, there are an estimated 400 brownfields properties identified by the county as needing attention.

·    $200,000 to the city of Nitro to assess and update the city’s brownfields sites.  Downsizing of the chemical industry has led to significant decline in population, increased unemployment and abandoned industrial properties. To date, 54 underused and vacant brownfields sites have been identified in Nitro.  Brownfield assessments will provide the city with a more thorough inventory of contaminated sites that have potential for reuse as small-scale commercial properties, greenspace, and recreational facilities.

·    $200,000 to the city of Parkersburg to assess and prioritize brownfields properties in Parkersburg, especially in the downtown area where plant closings have left abandoned properties and contributed to increased unemployment.  The brownfields assessments are expected to help facilitate cleanups and create economic opportunities for the city.

·    $200,000 to the West Virginia Department of Environmental Protection to assess properties along the historic U.S. Route 60 Midland Trail, a national scenic byway located along a 119-mile trail in the Appalachian Mountains.  Since the early 1900s, the economies of the 29 towns and rural communities along the trail relied on the bituminous coal, timber, and petrochemical industries.  Major job losses in these industries and construction of Interstate 64, which shifted travelers away from the trail, have caused serious economic problems.  The area’s population has declined, and the scenic trail has been left with many closed and abandoned businesses, including gas stations.  Brownfields assessments will clarify conditions at the sites and help facilitate reuse of the sites for historical interpretive stops along the trail and attract tourism and tourism-related jobs to the area.

The brownfields program encourages redevelopment of America’s estimated 450,000 abandoned and contaminated waste sites.  Since the beginning of program in 1995, EPA has awarded 1,702 assessment grants totaling over $401 million, 262 revolving loan fund grants totaling over $256.7 million, and 655 cleanup grants totaling $129.4 million.

As of March 2010, EPA’s brownfields assistance has leveraged more than $14 billion in cleanup and redevelopment funding and 61,277 jobs in cleanup, construction, and redevelopment.  Assessments have been performed on 15,135 properties and 458 properties have been cleaned up.

Additional information on the EPA brownfields program is available at http://www.epa.gov/brownfields/ and additional information on grant recipients is available at  http://www.epa.gov/brownfields/grant_info/index.htm .

By Cindy Rank

Voice deadline came at the end of a week overflowing with news on the valley fill/mountaintop removal/water front. The United States Environmental Protection Agency is making big waves and incurred a tidal wave of wrath from the coal industry, politicians and some in the regulatory community.

There’s such a deluge of activity that I can’t possibly do justice to it all for this issue. But the following are few hi-lights and a more detailed accounting of two major actions.

The Overview

At long last on March 26th EPA proposed to veto the fill permit for Spruce #1/Pigeonroost Hollow mine in Blair (Logan County) WV – familiar to readers of the Voice as the permit that became the focus of our Bragg v Robertson litigation in 1998 and the topic of ongoing debate and legal challenges since then. [See more about this action further down in the article.]

The last days of March (March 30-31, 2010) I attended the annual mine drainage symposium in Morgantown WV where the director of the Office of Surface Mining Reclamation and Enforcement (OSMRE) often makes one of the lead off presentations. This year recently confirmed Director Joe Pizarchik did the honors and rattled off a whole litany of rule changes OSMRE plans to propose along with a revised Stream Buffer Zone Rule in months to come. The list included items such as better and more uniform Approximate Original Contour requirements, excess spoil disposal and fill minimization, constructed valley fills, strengthened use of the CHIA (Cumulative Hydrologic Impact Assessment) process to avoid downstream impacts, defining “material damage” used in the CHIA process, and much, much more.

On April 1, 2010 (but fortunately not an April Fool’s Day prank) EPA announced more stringent conductivity limits for water permits to better protect streams and communities in the Central Appalachian region. [More about this action follows later in this article.]

Then on April 2, 2010 the Army Corps of Engineers (Corps) issued a release noting that the agency will also be filing new rules to better manage water quality in the region. The Corps reviews and issues Clean Water Act Section 404 “dredge-and-fill” permits for mining operations, and also must review the impacts of those permits under the National Environmental Protection Act – better known as NEPA. Corps officials said they would begin writing formal regulations to expand the scope of their analysis under NEPA. In previous litigation, the Corps has taken the position that its NEPA analysis is limited, arguing that they had to consider  only stream segments that were buried, and not other portions of valleys that were filled. Three years ago, U.S. District Judge Robert C. Chambers, in Huntington, ruled that the Corps was wrong not to consider broader impacts of fills. And now, the April 2nd announcement indicated Corps rulemaking would expand the analysis to “include all effects of proposed surface coal mining ‘valley fills’ on downstream aquatic resources” to ensure future mining operations comply with federal law.

These various rulemaking efforts are part of a multiagency effort by the Obama administration to fulfill its promise to take “unprecedented steps” to reduce the environmental impacts of surface coal mining in Appalachia. Preliminary outlines of the proposals now being presented to the public were contained in a June 11, 2009 memorandum of understanding among the regulatory agencies. It is clear from statements by representatives from EPA, the Corps and OSMRE that they are all reading from the same script with each agency emphasizing the parts of that script that apply most directly to their agency under the various federal environmental laws that impact permitting large scale strip mines and valley fills in central Appalachia.

So now the deluge of reaction begins…e.g.: – Mingo Logan Coal (an Arch Coal subsidiary) filed suit against EPA’s proposed veto of the Spruce Permit. –Citing the proposed veto of the Spruce permit and the “ridiculous guidance on water standards that Mother Nature will be hard pressed to meet”, Friends of Coal declared “the federal EPA has mobilized a new war on West Virginia coal. …every bit as serious and threatening as the federal court decisions of the past.” – And the list goes on. You might want to check out Ken Ward’s Coal Tattoo blog for running commentary about these actions.

For this issue of the Voice, allow me to expand on a few details of the two EPA actions of most immediate concern in this stew of activity — 1) the proposed veto of the Spruce#1 404 fill permit and 2) the water quality guidance intended “to clarify and strengthen permitting requirements for Appalachian mountaintop removal and other surface coal mining projects.”

We’ll revisit some of the other developments in future issues of the Voice.

Details on two

1) SPRUCE #1/PIGEONROOST HOLLOW 404 PERMIT – AT LONG LAST EPA PROPOSES VETO
There have been any number of Highlands Voice articles about the mine permit for Pigeonroost Hollow since Penny Loeb’s Sheer Madness article in US New & World Report (August 1997) and the infamous 1998 Bragg litigation. The history of Spruce includes a multitude of public hearings, comments written, permits debated issued and challenged. This latest is a proposed veto of the 404 fill permit issued by the Corps without due consideration of EPA’s concerns.

Rather than repeat a lot of what I and others have written about the Spruce controversy over the years, here is what EPA wrote about its proposed veto:

“The Spruce No. 1 Mine is one of the largest [single] surface mining operations ever authorized in Appalachia. It is located in Logan County, West Virginia in the Spruce Fork Watershed, which has been impacted by previous mining activities. The Mingo Logan Coal Company has already been authorized by the U.S. Army Corps of Engineers, Huntington District (Corps) to construct six “valley fills” and numerous sedimentation ponds in Seng Camp Branch, Pigeonroost Branch and Oldhouse Branch and certain tributaries to those waters by discharging excess spoil generated by surface coal mining operations. These on-site streams are tributaries of and exhibit surface water connections to Spruce Fork of the Little Coal River, which ultimately flows into the Coal River.

“EPA has reason to believe that the Spruce No. 1 Mine, as currently authorized, could result in unacceptable adverse effects to fish and wildlife resources. EPA has issued a public notice of a proposed determination to restrict or prohibit the discharge of fill material at the Spruce No. 1 Mine project site consistent with our authority under Section 404(c) of the Clean Water Act. EPA is concerned that the project could result in unacceptable adverse effects on the aquatic ecosystem, particularly to fish and wildlife resources and water quality. EPA is also concerned that the project may have cumulative adverse impacts. EPA believes that the Spruce No. 1 project, in conjunction with numerous other mining operations either under construction or proposed for the Coal River sub-basin, may contribute to the cumulative loss of water quality, aquatic and forest resources. The Coal River sub-basin is already heavily mined and demonstrates impacts associated with surface coal mining.”

Public comments on the proposed veto action are due June 1, 2010. We’ll be posting more on www.wvhighlands.org in the coming days, but for now you can find more background and instructions on filing comments at: http://www.epa.gov/region3/mtntop/spruce1documents.html.

A public hearing will be held. (Let us hope EPA is better prepared to conduct a civil hearing that the Army Corps of Engineers did in October 2009!) However, at the time this issue of the Voice went to press, location, date and time were not yet scheduled.

As I mentioned above, Mingo Logan/Arch Coal has filed legal challenge to EPA’s veto action though the action is far from final.

There will be lots more to this story and we’ll keep you informed as best we can as things develop.

2) EPA ISSUES COMPREHENSIVE GUIDANCE

Another blockbuster came from the Environmental Protection Agency (EPA) on Thursday, April 1, 2010. The coal industry in West Virginia and surrounding states may be wishing it was an April Fool’s Day prank, but fortunately EPA appears to be far from joking.

The announcement set forth a series of actions “to further clarify and strengthen environmental permitting requirements for Appalachian mountaintop removal and other surface coal mining projects” in Ohio, Pennsylvania, West Virginia, Kentucky, Virginia and Tennessee.

According to a news release from the agency a major reason for issuing new guidance is “A growing body of scientific literature, including previous and new studies performed by EPA, [that] show significant damage to local streams that are polluted with the mining runoff from mountaintop removal”.

Though I’m confident industry and state regulatory agency personnel were aware of the pending guidance, the actual announcement still stunned both. From what I heard at the annual mine drainage symposium in late March, many are outraged and incredulous.

I have no doubt people and companies will be lining up around the block with challenges from every perspective…… and we know how diabolically creative some can be when cornered like this. So what I write here is only the beginning of what promises to be a long saga.

One aspect of EPA’s announcement that has caused such a firestorm is the fact that though EPA will be seeking public comment on the guidance (once it finds its way into the official Federal Register) it has also made it effective immediately on an interim basis.

Especially irksome to industry and the West Virginia Department of Environmental Protection is the fact that EPA is not only exercising its Clean Water Act (CWA) authority to review Section 404 fill permits authorized by the Corps of Engineers (CORPS), but it is now also reviewing more closely Section 402 NPDES water discharge permits authorized by the states. At issue is the quality of streams below fills and mine discharges.

As long as I can remember – i.e. at least since 1979, citizen activists including WV Highlands Conservancy representatives Rick Webb, Richard diPretoro, John Purbaugh and others have lobbied for numeric standards for sulfates and other ‘salty’ components in mine discharges that contribute to the conductivity and total dissolved solids (TDS) in streams across the state and region. The nearest we could ever come to those goals is the inadequate and fairly unenforceable turbidity standard that was adopted years ago.

Now the chickens have come home to roost.

TDS levels (salts, sulfates, chlorides, you name it) have risen to unhealthy levels in many streams in Central Appalachia and much of that can be traced to mining areas in those watersheds. Studies by EPA and others have shown impairment to aquatic life in those streams and analyses demonstrate that the observed effects are due to types of salts that are consistent with minerals leached from mountaintop mining operations and not to other variables that were evaluated.

In accordance with its legal responsibility under the CWA to protect the nation’s waters and based on 2,000 field samples collected in West Virginia (and validated using data from Kentucky), EPA has now identified as a benchmark for protecting aquatic life a range of conductivity of 300-500 microSiemens per centimeter as the level needed to protect 95 percent of aquatic life and fresh water streams in Central Appalachia. The maximum benchmark of 500 is a measure of salinity that is roughly five times above normal levels.

In addition to the conductivity standard, EPA’s recently issued comprehensive guidance documents include directives to EPA field staff to coordinate with the federal CORPS and OSMRE, as well as state regulatory agencies “to strengthen environmental review of new Appalachian surface mine projects and to improve protection of the communities’ local water and environment.”

Related to these coordinated activities this comprehensive guidance clarifies how CWA requirements apply to the disposal of mining overburden in streams, and how best to reduce the size and number of valley fills, to limit water quality contamination of streams near mining operations, and to prevent significant environmental degradation of streams and wetlands. [I’m sure we’ll be hearing more about this as the Corps and OSMRE issue their proposed rules in accordance with the June 2009 memorandum …]

In support of these actions EPA has also released for public comment two draft scientific reports – one specifically dealing with the aquatic life conductivity benchmark – the other focuses on mountaintop removal and valley fill impacts cited in literature reviewed by EPA’s Office of Research and Development .

It should come as no surprise to readers of the Highlands Voice that this Office of Research and Development report contains the following conclusions:

• Burial of headwater streams by valley fills causes permanent loss of ecosystems.
• Concentrations of salts as measured by conductivity are, on average, 10 times higher downstream of mountaintop mines and valley fills than in un-mined watersheds.
• The increased levels of salts disrupt the life cycle of freshwater aquatic organisms and some cannot live in these waters.
• Water with high salt concentrations downstream of mountaintop mines and valley fills is toxic to stream organisms. To date, there is no evidence that streams that undergo a restoration process have returned to their normal ecological functions after the mining is completed.

In statements over the last few days EPA Administrator Lisa Jackson has repeatedly emphasized that “This is not about ending coal mining. This is about ending coal mining pollution.”

For readers wanting to do more in-depth reading of these and other related documents: http://www.epa.gov/owow/wetlands/guidance/mining.html#memo20100401

3) ENVIRONMENTAL JUSTICE CONSIDERATIONS

Perhaps most refreshing of all to me and others who have watched one family after another, one community after another dissolve away in the wake of ever expanding mountaintop removal operations is the inclusion of environmental justice considerations in the proposed Spruce veto and comprehensive guidance.

Despite countless hours of testimony and meetings and comments and discussions with members of affected communities, agencies responsible for the original Mountaintop/Valley Fill EIS (1998-2005) and the Spruce #1 EIS somehow managed to bypass pleas to consider just such factors. For the most part stories and predictions of problems fell on deaf ears.

As years go by and huge mining operations continue to expand, more and more people and communities have felt the effects of nearby mining and their voices have grown strong. Undaunted in their efforts impacted citizens have reached deep into some amazing storehouses of strength and courage. They have been indefatigable in their willingness to travel great distances to meet with Congressional representatives, to talk with like minded but uninformed citizens throughout the country, to share their stories in countless documentaries, publications, public hearings and media events. They have heightened the awareness that consideration of life and home and culture must be more fully and fairly accounted for in evaluating the pros and cons, the costs/benefits, the value of granting or denying mine permits that so fundamentally impact . They have put a human face on the legal arguments to protect the environment and those who are part of that environment.

Perhaps EPA has put it as clearly as anyone in the Federal Register Notice pertaining to the Spruce #1 veto:

“Although the Spruce No. 1 Draft EIS contained some information regarding environmental justice, EPA remains concerned that these issues were not adequately addressed in the Final EIS.

“Spruce No. 1 is located in a Census block group where the per capita income is roughly half that of the national average and $6,000 less than the West Virginia state average. Moreover, 24% of the residents of Logan County live below the poverty line which also exceeds state and national averages. Accordingly, additional analysis of the potential for disproportionately high and adverse effects on these low-income populations needs to be conducted.

”Specifically, a characterization of the economic status of residents near the site and the conditions they face including any effects relating to the proximity of the blasting zone, locations of discharges of fill material, truck traffic, noise, fugitive dust, and habitat loss needs to be conducted. Additional consideration must also be given to these activities’ potential impacts on subsistence fishing, hunting, foraging and gardening in the area. Additional information is needed concerning sources of drinking water for the affected populations (including municipal water supplies and private sources of drinking water including streams and/or wells).

“Furthermore, the cultural implications of mountaintop mining must not be ignored. The mountains being affected by Spruce No. 1 are considered a cultural resource by many residents. The mountains influence residents’ daily lives and in many cases have helped define Appalachian society. Removing them may have profound cultural changes on area residents, so it is important that cultural impacts be considered as well.”

See http://edocket.access.gpo.gov/2010/pdf/2010-7532.pdf for the entire Federal Register notice about the proposed veto of the Spruce #1 404 permit.
4) A FINAL NOTE

I don’t want to mislead readers by leaving your with an overly glorified presentation of these recent actions without some caveats. Nor do I want to give anyone the mistaken impression that these are the best or the be all and end all of what can and should be done about valley fills and huge surface mining operations.

EPA’s actions inject a breath of fresh air into the ongoing controversy and the proposed rule changes by EPA, Corps and OSM may well protect against the most egregious of mine permits in the years ahead. – To me they represent a giant step forward from where we have been these past ten years, and one that could actually be achievable given the right set of circumstances.

Also, it must be noted that Administrator Jackson is obviously sincere when she emphasizes the need – and her willingness – to protect communities. She repeats time and time again that “Coal communities should not have to sacrifice their environment or their health or their economic futures to mountaintop mining … They deserve the full protection of our clean water law.”

However, it remains to be seen just how well even the best of intentions will play out or better rules enforced. As Coal River Mountain Watch’s Vernon Haltom wrote just the other day: “Regardless of how clear and strict the rules of the game are, they’re useless if the referee is at the concession stand.”

Furthermore, people who are suffering TODAY from blasting, dust, intimidation, loss of water, home and family life along with the disappearing the hills and hollows of Appalachia can hardly be comforted knowing that stronger rules applied to new permits even with the best enforcement in the world will not bring them relief from the current destruction going on in their own backyards.

And finally, many will continue to encourage support for Congressional action on the Appalachian Restoration Act and/or Clean Water Protection Act as the only option(s) for truly ending the abuses of mountaintop removal and valley fill mining by reversing the 2002 Bush rule change that allowed mine waste to be disposed of into our nation’s waterways.

by Hugh Rogers

Biographies of Place

The farm is 150 acres of some tillable land, stands of timber, hay meadow, cow pasture, rocky hillsides of blackberry briar and sumac. It is bounded in the west for me as a child and for a long time after by certain large rocks, two hickories and a pignut tree at the edge of the woods, and on the east by the fallen remains of a shack with a birch growing up through it and a blue and white tin coffeepot which I noticed the other day is still there rusting. Other markers are: a field where I always found meteorites, clicked two red ones together and a silver dust fell out and slicked my hands; the small knoll which is the boundary between my father’s and uncle’s farms where I built a circle of stones and sat in it, expecting; and the deep hollow where I walked naked to become or find a dryad.

So begins our Poet Laureate Irene McKinney’s “The Durrett Farm, West Virginia: A Map,” the one prose piece included in her selected poems, Unthinkable (2009). I thought of it as I read Paul Salstrom’s essay in last month’s Highlands Voice.

Professor Salstrom, a West Virginian now teaching in Indiana, had been pleased to receive a “place-based” book written by one of his former students. It set him to wondering about biographies of places in West Virginia. McKinney’s three-and-a-half-page “map” would be a vivid introduction; its brevity and density recommend it for his class in Earth Literacy. The animals, wild and domestic, alive or buried in a designated graveyard; the house, built before the Civil War, with scaffolds for roof repair as weathered as the original siding; the father, ever “falling backwards” into family history as a way to understand his place; the creeks, orchards, and “muddy swathes of the loggers” fill in this “accurate and flexible map.” One understands the poet herself as part of the farm’s produce.

Salstrom asked, “When you think of ‘place,’ where do your thoughts go?” For him, the word summoned memories of the Lower Farm on Panther Branch in Lincoln County. Its animals—specifically, “an old retired mine pony named Bob”—featured as prominently as the log cabin and tobacco barn. His map could be something like McKinney’s. But in spite of the farm’s importance in his family history, and although he’d been blessed by a retreat there in “the worst year of my life,” he did not feel capable of writing its biography.

He wrote, “Now the place has changed.” We know change can act as a spur or a block to writing about a place. What stopped Professor Salstrom, I think, was the depressing effect of repeated assaults on the place that was dearest to him. A botched logging job, an intentionally-set fire that burned down the old cabin, and the threat of surface mining, which is devastating the Mud River valley: one turns away in dismay. It’s hard to write about a place that has become unrecognizable.

Generously, out of his loss, he offered an invitation: what does “place” mean to you? Do you have a mental map you refer to? What parts are most clearly drawn?

When we lived in Seoul, most of the people we knew, or their parents, had migrated there from other parts of Korea. Kohyang was the word they used to refer to their “original place”. The word has a deep emotional meaning that West Virginians especially can understand. Think of Kate Long’s well-loved song, “Who’ll Watch the Homeplace?”

My understanding comes from a different direction. When I was eight years old, my family moved from Massachusetts to North Carolina, and although I went back to Mass. for college and even lived there for a while as an adult, I had no feeling of kohyang. I wonder if the age when one is uprooted makes a difference. My mother has longed for New England now going on sixty years.

My sense of place lacks a focal point. Something else that happened when I was eight had a long-term effect, I think. I got my first big bike, with 26” wheels, and (tacit) permission to ride wherever I liked. My range constantly expanded. While my younger brothers and sisters knew our immediate neighborhood better than I ever did, I understood how many neighborhoods fit together. My map had a different scale.

We can’t create a kohyang—it wouldn’t be our “original place”—but we have tried to make a homeplace since we came to West Virginia more than thirty years ago. Our children, now grown, return and return, and their maps, and now their children’s maps, are full of fine and quirky detail. I hope they’ll write them down some time.

For now, I rejoice that Irene McKinney continues working on the map she began in 1976. Many readers will have heard bits of it from time to time on West Virginia Public Radio’s “Morning Edition.” When I asked about her plans she told me, “The idea of biography of place is exactly what I want to do. The person growing up out of place, rather than the person as star of the show.”

Twists and turns and finally a death

By Donald S. Garvin, Jr. West Virginia Environmental Council Legislative Coordinator

HB 4513, “establishing requirements for Marcellus gas well operations’ use of water resources,” died in a conference committee on the final night of the West Virginia 2010 Legislative Session.

If it had passed, the bill would have set additional reporting requirements for water withdrawals from streams, the contents of water used for high-volume “slick water” hydraulic fracturing, and where the waste water was to be disposed of.

The bill would also have required drillers to have plans for handling water withdrawals and waste disposal prior to getting the permit to drill. One of those plans would have covered maintaining minimum instream flows necessary to protect aquatic life when withdrawing water.

HB 4513 passed out of House Judiciary Committee by voice vote, and was later passed by the full House by a vote of 89 to 8.

The Senate referred the bill to two committees: first to Natural Resources, and then to Energy, Industry and Mining (EIM). Senate Natural Resources Chairman John Pat Fanning (D-McDowell) took the bill up in committee almost immediately, and he allowed a full hour for the public to make comments to the committee. The committee then passed the bill by a unanimous voice vote.

But that second reference to EIM was the kiss of death.

Before I go any further, I need to tell you about another oil and gas bill – SB 369, the “deep well/shallow well” bill. SB 369 would have changed the definition of a “shallow well” so that it applies to many vertical Marcellus Shale wells. Industry REALLY wanted this bill. But it’s a terrible bill that would have essentially legalized stealing of gas from neighboring mineral owners, and been worse for the environment by eliminating the need for well spacing (meaning more wells drilled and more land disturbed).

So keeping all this in mind, here’s how things played out during that final week, as described by WV CAG lobbyist Julie Archer in this week’s Capitol Eye:

“The House Judiciary Committee essentially held SB 369 hostage in order to encourage the Senate Energy, Industry and Mining (EIM) Committee to act on HB 4513. However, in an unfortunate turn of events, EIM amended the provisions of SB 369 into HB 4513. In addition, the committee also weakened important protections for our water resources, specifically a requirement that operators have a plan to maintain minimum instream flows. What started out as a good bill aimed at protecting our water resources, turned into something that neither WV-Surface Owners Rights Organization nor the WV Environmental Council could support.

The bill ended up in a conference committee on the last night of the session. Delegate Tim Manchin (D-Marion), lead sponsor of HB 4513, tried to convince the Senate conferees to agree to restore critical language needed to protect our waters. When it became clear no compromise could be reached, HB 4513 died, killing SB 369 along with it.”

So that’s that. But not quite.

The process of attempting to pass this bill in the Legislature has pushed Department of Environmental Protection to actually do more for protecting water from oil and gas operations. And as a result, much of what we proposed in the bill is actually now being done by the Office of Oil and Gas in the permit process. So all is not lost.

Finally, I want to mention that this bill would never have been proposed in the first place were it not for Delegate Tim Manchin (D-Marion), the House Chairman of the Legislative Oversight Commission on State Water Resources.

It was Delegate Manchin who had the bill drafted after a year’s worth of presentations on Marcellus drilling issues. It was Delegate Manchin who became the lead sponsor of the bill. It was Delegate Manchin who orchestrated the advancement of the bill. And it was Delegate Manchin who stood behind the principles of the bill to the bitter end.

I have never seen a legislator “work a bill” so hard.

He wore me out!

“THE BIRDWATCHING ANSWER BOOK: Everything You Need to Know to Enjoy Birds in Your Backyard and Beyond” by Laura Erick­son, Storey Publishing, $14.95.

Reviewed by Cindy Ellis

“What mammal could truly be called ‘resplendent’ or ‘scintillant’ or be justifiably named for any of the gems common in hummingbird names—ruby, amethyst, topaz, emerald, sapphire, or garnet?

Small wonder our depictions of angels portray them bearing the wings of birds. And small wonder that when we see birds, our minds are filled with questions.”

The quote, from near the end of this book, demonstrates this author’s affection for, and knowledge of her subject. For more than 30 years Erickson, of the Cornell Lab of Ornithology, has written and spoken about birds. She must have heard the same questions hundreds of times. Questions such as, “Will feeding the birds make them dependent upon me?” “Why aren’t birds coming to my feeders?” “Will mother birds reject the young if humans handle them?”

One clue to the tone of Erickson’s answers could be in the mission statement of the publishing company. “The mission of Storey Publishing is to serve our customers by publishing practical information that encourages personal independence in harmony with the environment.” This book does that. In three parts; “Bird Brains,” “For the Birds,” and “All About Birds, “and their 12 chapters [Canada Goose is found under “Outdoor Hazards!”], Erickson uses the question and answer format to shine light on anyone’s avian inquiries. It is rather like having a pleasant and experienced tutor, neither condescending nor pedantic, available on the bookshelf.

“Why don’t they organize field guides by color?” “What should I do if a bird crashes into my window?” “Do birds mate for life?” “Do birds play?” Sometimes the answers are simple and straightforward; sometimes the writer will provide all the known facts on a particular issue but freely admit that ornithologists do not yet completely understand every behavior or process. To help, she includes frequent sidebar selections on a wide variety of birdy things. Dipping into this book could make a reader feel like the Scarecrow in Oz when he got his diploma…suddenly one’s head is crammed with fascinating facts and figures clamoring to come out. Things like—Most wild birds never see their first year—Birds not only have much better visual acuity than we, but they can also see UV light— A Winter Wren sings an average of 36 notes per second!—Most older people cannot hear Cedar Waxwings.

The list of questions grows with ones such as, “Are balloon releases bad for birds?” “Do Vultures find dead animals by smell?” “Why am I seeing a Robin in Winter?” Meanwhile the sidebars let you know the details of a study on the memory skills of crows that used Dick Cheney masks and, also that, “During the breeding season, you might see three Mourning Doves flying in tight formation, one after another. This is a form of social display. Typically the bird in the lead is the male of a mated pair. The second bird is an unmated male chasing his rival from the area where he hopes to nest. The third is the female of the mated pair, which seems to go along for the ride.”

[At this point in writing the review, I stopped to stretch and stepped outdoors. Three Red-shouldered hawks, a species that have nested here for some time, were screaming in courtship displays! Really!]

So the review will wind down to allow the reviewer to tend to birds of “backyard and beyond.” This excellent resource book includes index, appendixes, and a modest, but serviceable resource section. It is small in size but jam-packed with helpful information and has pen or pencil drawings by Pedro Fernandes. His depiction of a Piping Plover chick is not cute enough, but the Whip-poor-will’s “whiskers” are just right!

The book was printed in China.

We Highlands Conservancy members, as readers of The Highlands Voice, are folks who enjoy the mountain habitat of birds and support protecting it and them. This book would fit nicely with wildlife field guides on our shelves or make a great gift. As Laura Erickson says, “As the world grows ever more computerized and mechanized, we grow hungrier to experience nature, and perhaps especially hungry to experience birdlife.” She would be glad to know we are part of a group trying to ensure that those experiences continue.

By Dan Berger

For fourteen years, Dallas, our black labrador retriever brought us joy, protection, love, and on occasion, frustration. Yes, I named the poor dog after my beloved and belittled Dallas Cowboys. As you may recall, I have written about her adventures as well as her companionship on fishing trips in this column before.

Unfortunately, the ol’ girl recently passed away, bringing a flood of emotions to my entire family. My now 6-year old daughter Shelby has always had that loyal black lab in her life. Always.

Dallas was also there for 14 years of my (so far) 19-year marriage, starting out in our lives as a small pup. She was the runt of the litter in fact (I do have a history of rooting for the underdog).

Now don’t get me wrong. I am not one of those people that treat dogs like people, however, I do treat them kindly and as a member of the family. And Dallas was a loving member of our family.

When we were blessed with our place near the North Fork River looking up at the magnificent cliffs on North Fork Mountain, I don’t think anyone was more happy than Dallas. New scents to smell. New animals to stalk and chase. New land to roam and protect. New water to swim in and then gloriously roll around in the dirt and grass. New porch to nap on in the setting sun. A good deal.

I will admit to you my friends, that just typing this article for the kind folks at The Highlands Voice has made my eyes slightly well-up. Caused mostly from the recollection of the sadness in my daughter’s face and words after informing her that Dallas had gone on to doggie Heaven. Have a problem with that? Well, you know what you can do? You can kiss my…oh never mind.

But now the good news!

After much lobbying by the love of my life, we bought a new puppy for Shelby’s 6th birthday. Little did I know that the negotiations had yet to really begin.

Now came who got the naming rights to the little pup. The first round of negotiations in naming the dog included every possible Disney World character (damn you Mr. Disney). Then it went to every conceivable princess and fairy. Holy mother of gawd, who knew there were so many flying fairies and young women of royalty?! And they all seem to wear pink and purple.

And can you imagine me calling the veterinarian for an appointment? “Hello, this is Dan Berger and I need to make an appointment for Tinkerbelle.” Please leave any dignity and manliness at the door.

Our new yellow lab is not only the cutest thing on the planet, she too has a friendly and fun demeanor very similar to Dallas. And she too loves all that Wild & Wonderful West Virginia has to offer.

And even more good news!

My young, soon-to-be-an-attorney-negotiating-prodigy daughter, finally settled on a name: Seneca. Why you may ask? Shelby says that “her fur is the same light color as the cliffs at Seneca Rocks, daddy likes to fish Seneca Creek, and they are both in my favorite place, the mountains of West Virginia.”

Please pass me a tissue.

Dan Berger is a lifelong outdoorsman and conservationist. He and his family live in Cabins and his past articles can be read at www.mtnriverhome.com

All over but the shouting

By Donald S. Garvin, Jr. West Virginia Environmental Council Legislative Coordinator

Don Garvin and Delegate Tim Manchin react during the Marcellus Shale bill discussion in Senate Natural Resources Committee

The 2010 regular session of the West Virginia Legislature was the perfect example of why we need the West Virginia Environmental Council.

This year a combined 2, 079 bills were introduced in the House of Delegates or the Senate. Among the bills that were introduced, 219 bills would finally be passed by both chambers, 98 House bills and 121 Senate bills.

Many of the bills that finally passed involved environmental issues or concerns. Many, many more of the original 2,079 bills involved environmental issues. In fact, there were so many that the WVEC Lobby Team had trouble keeping track of them all.

But the number of bills introduced this session was itself not out of the norm. Similar numbers have been introduced in recent years. What was unusual this year was how many of those bills were “active” at some time during the session. There were many days this year when it took all four of us on the lobby team in Charleston to cover committee meetings that were occurring all at the same time.

Here are just a few examples of bills that unexpectedly took up our time:

Early in the session WVEC lobby team member Denise Poole had to devote a major effort to defeat SB 85, the bill that would have repealed West Virginia’s statutory ban on the construction of nuclear power plants until they are proven safe. We won this one, when the Senate Judiciary Committee voted against the bill.

Likewise early in the session, WVEC lobbyist Leslee McCarty had to play defense on SB 181 and HB 4505, bills that would have limited counties and municipalities from enacting ordinances regulating natural resource extraction. These bills never made it out of committee, thanks in large part to Leslee’s efforts.

Similarly, WVEC lobbyist John Christensen worked tirelessly in support of two bills dealing with recycling that were not on our radar screen. One of those bills passed — SB 398, which prohibits the disposal of certain electronic devices, such as computers, monitors, and television sets in a West Virginia solid waste landfill. The other bill failed — SB 489, would have required the WV Solid Waste Management Board to study the state’s recycling success rates.

Along the same lines, there were at least a dozen great renewable energy bills introduced this session. The main sponsors of these bills were Delegates Barbara Fleischauer (D-Monongalia), Nancy Guthrie (D-Kanawha), and Mike Manypenny (D-Taylor). While none of these bills advanced far, the WVEC lobby team spent hours working them.

And I spent a big chunk of time trying to convince the chairmen of both Judiciary committees to block two bad Department of Environmental Protection bills that we had successfully managed to derail the previous three sessions. Those were SB 496, which made terrible revisions to the DEP Advisory Council, and HB 4277, which gives the authority to sign NPDES water quality pollution permits to the DEP Secretary. I failed in both cases.

Here’s a rundown of other bills – some good, some bad – that the Legislature dealt with this session:

• SB 614 – Improves the way the West Virginia Public Service Commission handles applications for certificates of convenience and necessity for high voltage (over 200 kV) transmission lines. It requires the PSC to give priority to the impacts of new lines on West Virginia citizens and consumers. And it requires that all land owners within the power line’s 2200’ wide proposed preferred construction corridor be given at least 30 days notice, by certified mail, that they have the right to intervene in the PSC case at least 30 days before the PSC sets a deadline for intervenors. Senator John Unger (D-Berkeley) was the bill’s lead sponsor. The bill passed on the last night of the session, and is a major victory for WV landowners and electricity consumers.

• HB 4130 – Establishes a Pilot Project for alternative public financing options for candidates campaigning for the West Virginia Supreme Court of Appeals beginning in 2012 through funds from the State Treasurer’s Unclaimed Property Trust Fund. The bill’s lead sponsors were Delegate Tim Manchin (D-Marion) and Senator Jeff Kessler (D-Marshall). The bill passed the last week of the session, and is a major victory for WV voters. Congratulations to Carol Warren and Julie Archer and everyone with the Citizen’s for Clean Elections coalition who have been working for years on public financing initiatives.

• HB 4016 – Ethics bill that would have toughened financial disclosure requirements for public officials and their spouses, and would have banned certain officials, including legislators and employees of the legislative and executive branches, from lobbying for at least a year after leaving their public post. The bill passed the House unanimously a week after the session began. The Senate referred the bill to Senate Finance Committee, where Chairman Walt Helmick (D-Pocahontas) never put the bill on the agenda. So the bill died and the “revolving door” is still alive and thriving at the WV Statehouse.

• HB 4008 – The “Green Buildings Act” would have required that new state buildings be built to the LEED silver certification or equivalent “Green Globes Initiative” building rating standard. This language was a compromise that had been worked out between all of the stakeholders over the last two years. After making it through the House Government Organization Committee in a “neutered” condition, WVEC’s “Green Buildings Act” (HB 4008) failed to make it on to the House Finance Committee agenda. So it’s dead for another year. The bill’s lead sponsor was Delegate Barbara Fleischauer (D-Monongalia). We’ll try again next year.

• Oil and Gas Rule – After what can only be described as a rough start, Department of Environmental Protection’s Oil and Gas Well Drilling Rule was passed by both chambers on the last day of the session. It took some butting of heads and a couple of conference committees, but the rule as finally adopted begins to address drilling for Marcellus Shale natural gas in some positive ways. The rule provides construction standards for large volume pits and impoundments. Amendments adopted make it highly unlikely that drillers will NOT use impermeable synthetic pit liners. And amendments were accepted that require notice and opportunity for a hearing for the surface owner, should a driller opt to use just a clay liner. While we would have liked to see other protective measures included in the rule, this is a good first step at protecting the state’s water resources from Marcellus Shale drilling operations.

• State Building Code Rule – Last year the Legislature passed a bill requiring the State Fire Commission to update the energy efficiency provisions of the State Building Code. This year the Legislature gutted the 2009 IECC energy code provisions from the rule proposed by the State Fire Marshall. West Virginia currently is as much as six years behind in updating to the National Code. We lobbied hard to restore the energy efficiency code to this rule, along side the Governor’s staff. The WV Homebuilders Association lobbied hard to keep the updated energy code out of the rule. We lost. This prompted one of the stakeholders to comment that “West Virginia’s building code amounts to the worst possible building you can build under the code.”

• SB 518 – As originally introduced would have created the “Governor’s Commission to Seize the Future of Energy for America” (we dubbed it the Commission to Seize the Past). However, after the House Finance Committee finished with the bill, there’s no commission at all! The bill simply gives the state’s Division of Energy some additional responsibilities relating to promoting “clean coal,” something the agency already does whenever it gets the chance. The one good thing in the bill is that it requires Legislative Auditor’s office to perform an agency review of the Division of Energy in 2010 as part of its review of the Department of Commerce. That could prove interesting.

As I mentioned earlier, the bills I have highlighted here are just the tip of the iceberg. Overall, it was a grueling session, what with the workload and the winter weather that never seemed to end.

I believe the WVEC lobby team performed our role well. We were able to advance some of our agenda while also “playing defense” and stopping some really terrible legislation. WVEC continues to have a more credible presence for the environment at the Legislature every year.

So on behalf of all the WVEC team, thanks again to the West Virginia Highlands Conservancy for your continued support.

Now it’s on to the Legislative Interim Committee meetings which will begin soon!

The West Virginia Supreme Court of Appeals has accepted for review an appeal by the Highlands Conservancy, Friends of Blackwater, and former State Parks Chief Cordie Hudkins of a decision by the Circuit Court of Logan County. The decision would have allowed gas drilling in Chief Logan State Park.

The Supreme Court does not review every, or even most, cases that are appealed. All cases receive a preliminary review. With the majority of cases the Court rejects the appeal after this preliminary review. Those which are not rejected are scheduled for full review.

The controversy is over a proposal by Cabot Oil and Gas to drill several gas wells inside Chief Logan State Park. The Department of Environmental Protection had originally denied the permit to drill based upon a statute which it believed prohibited drilling for gas in a state park. Cabot Oil and Gas (the driller) appealed to the Circuit Court of Logan County which reversed the Department of Environmental Protection and ordered that the permit be issued.

A state statute, West Virginia Code 20-5-2, appears to prohibit developing of minerals on state park land. The Department of Environmental Protection had originally denied the application for a permit to drill a well based upon this statute.

While the Department of Energy assumed that the statute prohibited the drilling, the Circuit Court made a different interpretation. It ruled that the statute only applies to minerals not owned by the state. Since the minerals at Chief Logan State Park were not owned by the state, the Court ruled that the statute did not prohibit drilling for those minerals.

On April 16, 2010, the Highlands Conservancy, Friends of Blackwater, and former State Parks Chief Cordie Hudkins will file legal arguments on this issue before the West Virginia Supreme Court. The West Virginia State Division of Natural Resources and Department of Environmental Protection will also file briefs, as will the “Lawson Heirs,” who own the gas under Chief Logan State Park — and proposed gas driller, Cabot Oil.

It seems likely that this case won’t be decided by the Supreme Court until the Fall of 2010. There is a lot of evidence that the trial court did not see, and it’s possible that the case will be sent back to the lower court system. But the pro-park side has submitted evidence showing that the law has been interpreted to protect park-owned land for more than fifty years, and there’s a good chance that this interpretation will stand.

Whatever happens, this case has huge consequences for West Virginia’s state park system. Please support this legal effort in any way you can.

By Katheryne Hoffman Victor, West Virginia

Yes, I said water, not coal. At a time when other states are having to radon water, and the water wars are beginning, our state is Blessed with untold amounts of water–streams, creeks, lakes, rivers. Waterfall–a seemingly never-ending supply of this life giving resource.

Yet, something ugly is happening here. An out of control industry, with no regard for the people or the environment of this beautiful state, are wreaking havoc on our water sources. They are violating the Clean Water Act recklessly. burying hundreds of headwaters, poisoning our creeks, rivers, and lakes with the byproducts of coal: arsenic, selenium, mercury, sludge, and many other contaminants. All this in the name of electric power, coal, and jobs. Yet, all the electricity in the world and all the jobs in the world will be absolutely worthless without clean safe water with which to drink, cook, and bathe.

The mountaintop removal method of mining coal is one of the main reasons why our water sources are being devastated. If the industry really cared about the jobs and the miners, they would go back to underground mining until the coal is gone. They could provide many, many more jobs by going underground, for in mountain-top-removal mining, the machines do all the work. They could use the money they spend on their misleading commercials to provide more safety for the men underground. Just maybe they could be persuaded to enforce the laws in place to protect the people and the environment.

If our Governor and our Legislators were not so totally cowed by the coat industry, they would be putting into place legislation to protect our water. If we had a Department of Environmental Protection that was allowed to enforce the laws already in place, companies would not have to worry about permits, miners could work, and the citizens would have some faith in the system.

Unfortunately, what we have is an industry who has for generations controlled the politicians; polluted the environment, killing the citizens; and who acts like a schoolyard bully when it is expected to obey the law.

The extraction of coal has always been perceived as an energy issue,. However the problems caused by the mountain-top-removal method of mining coal are Human Rights Issues: burying and polluting our water sources; polluting the air we breathe; destroying our forests and the animal and bird habitat; desecrating our cemeteries and destroying or moving entire towns, thereby eradicating our culture and history; and removing the entire mountaintops for which our state is renowned, and with which most West Virginian’s are spiritually entwined. All these are Human Rights Issues.

Perhaps, one day, the companies and the politicians can be tried for Crimes Against Humanity.