WHAT WAS SUPPOSED TO HAPPEN
By John McFerrin
Even though it turned into a pro-coal rally, a chance to bully anybody who disagreed with the pro-coal forces, etc., (see accompanying story) there was actually some serious business to be conducted at the October 13, 2009, public hearing. Instead of what it was about (intimidation, railing against the Environmental Protection Agency, braying about environmentalists, etc.) it was supposed to be about a proposal by the United States Army Corps of Engineers to Suspend Nationwide Permit 21.
Nationwide Permit 21 is what is known as a “general permit.” General permits are designed for activities that produce minimal environmental impact. They allow such activities to go forward with less scrutiny than there would be for activities that produce a more substantial impact.
Nationwide Permit 21 was issued in 1982 to allow dredged or fill material to be discharged into the waters of the United States from all surface mines without the scrutiny that would come if projects were examined individually.
The world has changed since 1982. Here is how the Corps of Engineers explains it:
Since NWP 21 was first issued in 1982, surface coal mining practices have changed, and surface coal mining activities in the Appalachian region of Kentucky, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia have become more prevalent and have resulted in greater environmental impacts. Mountaintop surface coal mining activities increased because many of the remaining coal seams in the Appalachian region were less accessible to non-surface coal mining techniques. Since the late 1990s, there have been increases in concerns regarding the individual and cumulative adverse effects of those activities on the human environment and the natural resources in this region, including streams and other aquatic resources.
In light of this new reality, the Corps of Engineers wants to suspend NPW 21. This would mean that mining projects which discharge dredged and fill material into the waters of the United States after more exacting scrutiny of review of individual projects.
It has, of course, been the position of the West Virginia Highlands Conservancy for many years that NWP 21 was bad policy and probably illegal as well. As United States Supreme Court Justice Felix Frankfurter said, “Wisdom so often never comes that we should not reject it simply because it comes late.” Even if the Corps of Engineers should have eliminated it decades ago, it is doing it now.
As it does with many new rules, the Corps of Engineers is holding a series of public hearings on the proposal to suspend or modify NWP21. These included the one in Charleston on October 13.
The mob atmosphere that existed at the October 13 hearing prevented there being any real discussion of the proposal. Fortunately, there were other opportunities for commenting on the proposed change. The West Virginia Highlands Consrvancy, as well as several other groups (Ohio Valley Environmental Council, Coal River Mountain Watch, Kentucky Riverkeeper, Kentucky Waterways Alliance, Kentuckians for the Commonwealth, Southern Appalachian Mountain Stewards, the Strip Mining Committee of Save Our Cumberland Mountains, Sierra Club, National WildlifeFederation, and Natural Resources Defense Council) made written comments upon the proposal.
The comments objected to the language in the proposal indicating that the Corps intended to continue processing permits under NWP 21 while it considers suspending NWP 21. (Perhaps attributing “wisdom” to the Corps of Engineers was too generous.)
The comments also pointed out that, even were one able to say with a straight face that the effects of one fill were minimal, the cumulative effects of NWP 21 activities on streams are unquestionably more than minimal. The United States Fish and Wildlife Service and the United States Environmental Protection Agency have both made comments to the Corps of Engineers to this effect, as have senior aquataic scientists.
The comments quote letter from Univ. of Georgia Institute of Ecology:
The available scientific evidence clearly demonstrates that the length of headwater streams in the landscape has been significantly reduced because of the mining and development activities that have been permitted under this program. . . . This loss of headwater streams has profoundly altered the structure and function of stream networks, just as eliminating fine roots from the root structure of a tree would reduce its chances of survival.
The breadth of the impact, particularly in individual watersheds is striking. In some watersheds, well over half of the watershed is disturbed. This leads to destruction of headwater streams and the degradation of water quality in streams that are not buried. The impact on aquatic life as well as hardwood forests is dramatic.
The comments included attachments documenting the things asserted in the comments themselves.
The comments by the groups are full of technical arguments, data, footnotes, etc., as they should be.
A more simplified (and more teenagerish) approach would be, “For twenty seven years the Corps of Engineers has regulated valley fills on the assumption that they produced a ‘minimal impact.’ Now it thinks that assumption might not be true. Well, Duh!”
WHAT ACTUALLY DID HAPPEN
By Joe Stanley
My name is Joseph C. Stanley and I am writing to give comments about Nationwide Permit 21. Before I do so, I would like to tell you about the public hearing held in Charleston, WV on October 13, 2009.
When I arrived at approximately 5:30 pm, a huge number of people wearing reflective mining clothing were on the outside of the Charleston Civic Center where the meeting was being held. The purpose of this meeting was to give comments concerning the Nationwide Permit 21 (NWP 21).
As we approached the Charleston Civic Center, I and the two I was with were approached by people insisting that we accept Friends of Coal shirts or Friends of Coal stickers—I told them I didn’t want any. At that point several people in reflective clothing began calling us insulting names. There were no police present to prevent this onslaught of abusive language. We entered the building and passed through a metal detector. People inside were also giving out Friends of Coal stickers and t-shirts directly in front of the table where I had to register to be able to speak at this federally area.”
A second Charleston Police Officer came running up to back up the other officer. The two officers stayed between our group for several blocks until we were at one of the parking lots where Maria Gunnoe, Robin Blakeman, and Vivian Stockman were parked. The mob had continued to follow the policemen. The policemen waited at the corner.
Vivian Stockman thanked them and told them that there were others inside that needed help getting out.
The women got into their cars. The young couple that was with us had parked on the second level of the parking garage so, after taking them up, Michael and I left in our car.
It is a miracle that one of us was not killed by the men who threatened to kill us. I have been around mining people all of my life and I haven’t seen anything like this. It seems to have been planned.
The USACE failed to take the security issues seriously. When capacity was reached, the overflow should have been moved away from the entrances and exits. This mob did not have a permit to assemble in front of the Civic Center. Not enough police protection was provided and no West Virginia State Police were present. This was a U.S. Government sponsored meeting and we were blocked by an organized effort to prevent us from expressing our opinions. I believe the U.S. Department of Justice should investigate what occurred.
The following morning, I contacted Ginger Mullins at the Corps of Engineers office in Huntington. I told her we had been threatened and assaulted. I also asked that the security tapes inside and outside the Civic Center be protected and that another meeting should be held to allow the opposing side to comment. Rather than hold another meeting, she said comments could be submitted until October 26th, 2009. I asked her if she understood that the security tapes should be protected and she acknowledged that she understood that.
This is an excerpt from Mr. Stanley’s letter to the United States Army Corps of Engineers. Mr. Stanley is a native of West Virginia and a retired coal miner. He worked my entire mining career in Mingo County, both underground and at a coal processing plant. He worked the first 14 ½ years non-union and the rest of his career as a union employee. He was elected President of the Local Union 93 in 1993 and was also a member of the Health and Safety Committee. His comments favored the Corps’ proposal to suspend NWP21.