Note from Webmaster: Entire Report is separately available for download on-line as a Microsoft Word document.

To: Governor Cecil Underwood

From: John McFerrin

Re: Minority Report of the Governor’s Task Force on Mountaintop Removal

Date: January 2, 1999

INTRODUCTION

You have recently received the final report of the Governor’s Task Force on Mountaintop Removal. As you know from the Report, I voted against its adoption. Since the report contains little to indicate why I voted as I did, I would like to offer you some explanation.

I would also like to offer you the benefit of a perspective which is different from the others on the Task Force. At the time of the formation of the Task Force you indicated how much you valued different perspectives. If the Report does not reflect all perspectives, then that which you value is lost.

OVERALL CONCLUSION

After considering all the testimony at public hearings, my own study, and various documents, it is my belief that mountaintop removal mining should be banned. To the extent that any of the committee reports allow for its continued existence then I disagree with them.

My conclusion comes from many sources. First, it is not economically useful. Coal mining is at best a temporary benefit to our state’s economy. The historical record is overwhelming that the presence of coal mining does not contribute to the long term economic health of West Virginia. In counties where it is found, it is the dominant economic activity. Yet the non-coal economy does not thrive. If coal does anything for an economy, it is that it creates a prosperous economy for coal companies and temporary employment for some (although the number is declining) workers. It does nothing for the economy as a whole. If this were not true the coal counties would not be the poorest in a poor state.

Given the brevity of the future life of the coal industry in West Virginia, it is folly to continue allowing an industry to rip up our state in exchange for the short term boost to the fortunes of a handful of mining companies and a shrinking number of workers.

Second, it is environmentally damaging. This should be an uncontroversial conclusion. The process takes millions of tons of dirt and rock and dumps it into valleys. It fills streams. It replaces living, growing forests with grass and (on rare occasions) struggling seedlings. Nature has awesome recuperative powers. Several centuries hence it will have corrected this damage. To say that the mining is not environmentally damaging is ludicrous.

That the mining is environmentally damaging does not, of course, fully answer the question of whether we allow it to continue or not. Most things we do are environmentally damaging. Were there economic or social benefits that outweigh the environmental damage then the continuation of mountaintop removal mining would be a reasonable option.

Mountaintop removal mining is the most intrusive, most hideous, most environmentally destructive practice one can imagine. The very name says it all. Were it producing the best schools, the best roads, the healthiest people, and the most prosperous economy then one could consider tolerating this practice. Since it is not, the environmental damage is not tolerable.

Third, the people oppose it. In the only published poll, those opposing it led those favoring it by 53% to 29%. By any measure, this is a landslide. This is in spite of a barrage of advertisements in newspapers and on television praising the practice. If we had an election in which only one party campaigned and that party still lost convincingly, we would conclude that the people had spoken resoundingly against the losing candidate. We can conclude no less here.

Fourth, mountaintop removal mining is illegal. The valley fills which are inevitably associated with mountaintop removal mining are wholesale violations of the Clean Water Act. Even were it not a wholesale violation of the Clean Water Act, the post mining land uses are not the limited ones that the federal Surface Mining Reclamation and Control Act require.

Fifth, mountaintop removal mining is immoral. The Methodists, the Catholics, the Episcopalians, the Lutherans, and the Presbyterians have all passed resolutions opposing mountaintop removal mining. When the religious community speaks with such unanimity, it is only proper to give that some weight.

In addition to the overwhelming opposition from organized religion to mountaintop removal, there is a moral dimension to the question of the continued use of coal as a fuel. The use of coal as a fuel contributes to global warming, makes people sick from breathing polluted air, and contributes to acid rain. One might be able to justify it as a necessary evil until we can replace coal with cleaner sources of energy but no one could contend that continuing to burn coal is a sound moral position.

By continuing to use its political influence to promote the use of coal, West Virginia is advocating for continued use of a socially damaging fuel. In doing so, it takes the morally suspect position of advocating a socially damaging practice because that practice serves its selfish purposes.

Were West Virginia not so strong an advocate of the continued use of coal, the nation could more easily move forward to a world of cleaner energy. Were we to be guided only by moral principles, we would work for the day when no coal will be burned. To the extent that we can move away from coal to another energy source and an economy that does not rely upon coal, we have a moral obligation to do so.

Finally, and perhaps most persuasive in my consideration of mountaintop removal, is the attitude of the coal industry itself as demonstrated at the public hearing on November 17.

For longer than anyone can remember, the public policy of the state of West Virginia has been to do whatever it could to meet the needs of the coal industry. This has produced the second poorest state in the nation, a state with hundreds of miles of streams dead from acid mine drainage, hundred of miles of streams obliterated by valley fills, and thousands of miners crippled with black lung.

Mountaintop removal mining could only be justified were this relationship reversed. Instead of designing public policy to meet the industry’s needs, the industry must meet West Virginia’s needs. Unless it is willing to do that, then there is no justification for mountaintop removal mining.

From the comments at the public hearing, there is no indication that this is true. The industry representatives praised the current practice of reclaiming land to "wildlife habitat" a practice that has no legal, economic, or social justification. Its only redeeming feature is that it is cheap, an attractive quality for the industry but not for the state of West Virginia.

If there is any doubt about the industry attitude, consider the comments of K.O. Damron. He found the modest suggestions that the coal industry should take some steps to reduce the impact on communities totally unacceptable. If this is the attitude of the industry as a whole, then the state of West Virginia is not dealing with a reasonable industry. Instead, it is dealing with an industry which has had so much power for so long that it is incapable of considering the possibility that it may not be allowed to do exactly what it wants. It is an industry that has historically put its needs before those of the public and sees no reason to change.

There is, or course, the possibility that Mr. Damron is only the lunatic fringe of the coal industry, turned loose to make the rest of the industry seem reasonable by comparison. If he is typical, however, then we are not dealing with a reasonable industry. We are dealing with an industry that will continue to do as it has always done until it is forced to change. We are dealing with an industry that will fight every step of the way. Given how far we would have to go to make mountaintop removal acceptable, there is little point in beginning that journey with such a recalcitrant industry.

For all these reasons, I conclude that mountaintop removal mining should be eliminated.

Given this overall conclusion, anything that I have to say concerning committee reports would be, in one sense, moot. If I oppose the entire practice, then there is little sense in commenting upon committee reports which assume that it will continue.

In spite of this, I offer the following comments. Even though my views on the wisdom of continuing the practice did not gain the support of the Task Force, there are still ways in which the report of the task force could be improved so as to provide you with more useful policy advice.

COMMITTEE ON THE ECONOMY

The report of the Committee on the Economy contains some useful recommendations. It recommends that we eliminate "wildlife habitat" as an approved post mining land use. This method of reclamation is illegal anyway. Its only appeal is that it is cheap to carry out. It produces land with no economic value. As a legal and economic matter, there is no justification for this as a post mining land use.

The report suggests a method for determining what land could be reclaimed for an industrial use. This is another positive step. The discussion of the entire issue of mountaintop removal has been full of general statements of "We need more flat land." This generalization may be true in some circumstances. There are some situations in which more flat land would be beneficial for industrial development. It is not, however, universally true. The vast majority of flat land created by mountaintop removal is remote, has no water, is of uncertain stability, and is inaccessible. Flat or mountainous, it has no potential as an industrial site. The report suggests specific criteria for approval of an industrial post mining land use. They are based upon a realistic understanding of the industrial potential of sites and the necessity of access, water, etc.

In the past post mining land use suggestions which proposed industrial land use were little more than shams. Regardless of the contour of the post-mining land, the sites were unsuitable for any industrial purpose because of their remoteness, etc. By proposing a set of criteria, we make it possible to separate the shams from the realistic proposals and make permitting decisions accordingly.

The Committee’s conclusion that most post mining land uses would be commercial forestry contains both good and bad features. The feature which most strongly recommends it is that it is vastly superior to the current practice of allowing the industry scam of "wildlife habitat" as the dominant post mining land use. The only appeal of "wildlife habitat" reclamation is that it is cheap for the companies, something which the industry finds appealing but the public good does not. One can hydroseed an area and call it a "wildlife habitat." Regardless of what you call it, it is still a field of grass which has no economic, aesthetic, ecological, or social value. Whatever its deficiencies, commercial forestry is an improvement.

There remain concerns about commercial forestry as a post mining land use for mined land. First, it is probably illegal. The regulation on post-mining land use for mountaintop removal sites allows "woodland." The regulations define woodlands as those "where flat or gently rolling land is essential for the operation of mechanical harvesting equipment." There is not a scrap of evidence that this condition exists on any commercial forestry site in West Virginia. The timber industry routinely cuts trees on other than "flat or gently rolling land." One cannot seriously argue that the creation of such land on mountaintop removal sites is "essential" to commercial forestry.

Second, it is unproven. The Committee relied almost entirely upon the experience of the Powell River Project. Even that project is based upon speculation. It assumes that its "projections" about trees which live fifty years are accurate. It has not ever actually had any trees that lived fifty years to test whether those projections are accurate.

There is reason to believe that the assumptions of the projections, even if accurate, cannot be extrapolated to mountaintop removal sites. As one of the speakers at the public hearing pointed out, the presence or absence of water is a limiting factor in tree growth. The disturbance that is the site of the Powell River Project is much less dramatic than that in a mine on the scale of the mountaintop removal mines in West Virginia. The interruption in the hydrology would be accordingly greater on a mountaintop mine.

Earth disturbance on the scale of a mountaintop removal creates a completely unpredictable water table. As the bulletins of the Powell River Project pointed out, mining creates land where it is possible to have saturated soil very close to the surface. At the same time, it is possible for the reclaimed area to be dry all the way to the natural ground. This variability occurs because of the unpredictable variability in the size of the backfill particles. They can range from dust to boulders. The result will be that a site reclaimed as "commercial forestry" may well be a site where the water table is such that long term growth of trees is impossible. At a minimum, we could expect that the available water would often be much deeper that it currently is. This deeper water would have an adverse effect upon tree growth.

The use of commercial forestry as a post mining land use is also in direct contradiction to one of the core assumptions of mountaintop removal mining: that the material does not weather to soil. The fundamental assumption about the construction of a valley fill is that the material is durable. The design assumes that the material will remain in large particles as rock rather than weathering to soil. If it weathers to soil the fill no longer drains properly and becomes unstable.

The Powell River Project makes the opposite assumption:

Both assumptions cannot be true. Either the material on site is such that it will never weather to soil (the assumption behind fill construction) or it will weather to soil within a few years (the assumption behind forestry). The same material cannot simultaneously contain properties causing it to weather and not weather.

The Powell River Project also identifies soil qualities that are necessary to establish commercial forestry. It recommends that "siltstone and shale that occur directly above or below coal seams should be avoided. These rock types usually have high levels of soluble salts, a high pH, and compact to greater densities when trafficked." Since mountaintop removal mining typically involves several seams, this will in all probability mean that to reforest successfully would require segregation of multiple strata containing these soluble salts, etc.

The report of the Committee on the Economy assumes that commercial forestry is an achievable post-mining land use. This is, at best, a half truth. It may be achievable as a theoretical matter but it has never been achieved. In order to achieve it, any mining company would have to overcome such problems as the irregular water table, the weatherability or non-weatherability of spoil, and the segregation of the strata which contain soluble salts.

Even where, as the Powell River Project assumes, all these barriers can be overcome, the result is inferior to the pre-mining land use. This places such uses in violation of state and federal laws which require that land be restored "to a condition capable of supporting the uses it was capable of supporting prior to any mining, or higher or better uses" The pre-mining land use on mountaintop removal sites is overwhelmingly native forest. They have a variety of species and substantial aesthetic and ecological value in addition to their value as sources of marketable timber.

Not even the Powell River Project claims it can replicate this:

The bulletins of the Powell River Project do go on to assume that these "pioneer species" will eventually yield to native hardwoods. Unless the term "eventually" means "some time within the next five hundred years" there is absolutely no evidence that this is true. If by "forestland" we mean the kind of land that existed before mining, there is no reasonable possibility that this will occur in any time frame that is meaningful.

There are various ways to address the technical difficulty of establishing a forest on mined land. One is to require a level of sophistication of the permitting agencies that is to date unprecedented. It will no longer be sufficient to examine the company’s seed mixture and nod in agreement. It will require consideration of material handling techniques, placement and segregation of soil strata, water requirements, etc. Unless we start examining such proposals with such a sophisticated and critical eye, the post-mining land use of forest land will turn into little more than the scam that "wildlife habitat" is today.

Second, we need a bonding period that is substantially longer than we now have. Current bonding practice is to begin releasing bonds or portions of bonds as soon as land is graded to its final contour and revegetation has begun. With forestry, this is much too short a period. Developing a forest is a long term project. If we allow mining on the assumption that the post-mining land use will be a forest, we must not release the bond until after that forest has been created. If fifty years is required to create a forest, then a fifty year bond is appropriate.