Earlier this spring, the federal government was poised to give a green light to the Big Branch Surface Mine in Pike County, Kentucky. The Central Appalachia Mining Co. planned to deforest and demolish several mountain peaks in order to excavate 7.3 million tons of coal — the technique known as mountaintop removal. The resulting debris would fill five nearby valleys, burying more than 3Â½ miles of streams under massive, sculpted piles of rocks.
Big Branch wasn’t much different from the hundreds of other mountaintop projects across coal-rich Appalachia. It would disrupt the lives of residents in neighboring communities with blasting, heavy traffic from coal trucks, and runoff from denuded hillsides. Nature would take an even bigger blow. The project would obliterate forests and streams, foul waterways further down the mountain, and disrupt the delicate forest ecology for miles around.
While such mines are usually located in remote areas, their collective impact is enormous, and growing. An Environmental Protection Agency study estimated that by 2012, mountaintop removal projects in Appalachia will have destroyed or seriously damaged an area larger than Delaware and buried more than 1,000 miles of mountain streams.
Though such massive damage appears to violate several federal environmental laws, government agencies have routinely given mining companies leeway, and in this case, the U.S. Army Corps of Engineers was close to signing off on a debris-dumping “valley fill” permit for Big Branch.
Then the Environmental Protection Agency weighed in. To all appearances, the letter sent on March 23 from EPA Region 4 headquarters in Atlanta to the Corps’s district office in Huntington, W.Va., was routine mid-level interagency correspondence. But in fact, it was a warning shot in one of the first big environmental battles of the Obama administration.
James Giattina, regional director of the EPA’s water division, wrote that filling those five valley streams could violate the Clean Water Act’s wildlife protections. He advised the Corps and the coal company to come up with a more eco-friendly plan and invited them in to chat.
But if Giattina was hoping to foster a spirit of cooperation, he failed. Company executives broke off negotiations with the EPA after a few meetings; soon after, the Corps prepared paperwork approving the permit, just as it routinely did. Although the EPA does not process permits for so-called valley fills, it has an effective veto over them — and for the first time in years, the agency signaled it was ready to use it. In late April, the EPA held up the permit and launched a more detailed review.
George W. Bush was one of the best friends the coal industry ever had. Over the past eight years, Bush administration officials did nearly everything they could to clear the way for more mountaintop removal. They fought the court challenges that community groups filed against mining projects, watered down environmental regulations, and did little as scientific evidence grew showing the severe ecological damage of mountaintop projects.
During the past eight years, the Bush administration did nearly all it could to clear the way for more mountaintop removal.
But now, Obama has freed the EPA to flex its long-dormant regulatory muscle. Big Branch is one of five proposed mountaintop removal projects the agency is challenging on similar grounds. That’s a small fraction of the backlog of pending permit applications before the Corps — there are about 200, many delayed due to now-resolved litigation — but the EPA’s actions will reverberate. The agency’s new approach may ultimately force coal companies to soften the impact of mountaintop removal projects, and perhaps cut back or even stop employing the technique altogether.
The EPA’s moves are a clear sign the federal bureaucracy that Bush often belittled has been granted the latitude to regulate again. Barack Obama came out against mountaintop removal during the presidential campaign (as did John McCain), and the EPA has moved swiftly to change course: Its first letter raising questions on a mountaintop project went out on Jan. 20, Inauguration Day.
Of course, the coal industry has powerful patrons in Congress and no shortage of lobbying money, so it’s an open question exactly how far the EPA will be able to go. So far, it’s handling the issue quite cautiously.
The EPA didn’t issue a blanket moratorium on valley fill permits but chose a handful of test cases instead. The agency announced on March 24 it was reviewing all pending permits, but then EPA administrator Lisa Jackson put out a statement hours later saying that “we fully anticipate that the bulk of these pending permit applications will not raise environmental concerns.” Still, environmental groups tracking the issue say that the problems in the permits the EPA has singled out can be found in many others. So this could be just the beginning of a much broader effort.
Interests on either side are girding for a regulatory trench war.
Carol Raulston, an executive vice president and spokesman for the National Mining Association, warns that the EPA’s review will delay permits that were the verge of approval and cost high-paying jobs during a recession. “This has not been a transparent process, so we are not sure what the objective is at the end of the road,” she says.
Environmental groups are encouraged but wary. “I don’t know if the Corps is going to soften its position. The important part to us is that the EPA continue to block these permits,” said Joan Mulhern, a lawyer with EarthJustice who works on anti-MTR litigation. “Of course, they [the EPA] said publicly that most of them are okay, which is a mystifying statement because none of them are okay.”
The Appalachian Mountain range dates back 300 million years. Its coal is the residue of peat bogs formed in tropical coastal swamps when there was a single supercontinent, Pangaea. But it takes only a matter of months to tear down a mountain peak using explosives and giant excavators. The technique is both faster and less labor-intensive than underground mining, and allows profitable access to thin coal seams that otherwise might not be worth harvesting. Since the mid-1990s, the coal industry has cut a swath of devastation through Appalachia’s remote, coal-rich highlands, one of the nation’s most dramatic cases of environmental devastation and regulatory failure.
The fate of the peaks has drawn international attention, but what goes on in the valleys is in many ways more significant. Each spring, the rain that falls on Appalachian mountainsides gathers into thin rivulets, mixing with spring water and groundwater. These streams, often no more than a foot wide, teem with microscopic, insect and animal life that is the foundation of the forest and river food chains and biodiversity. Plug up those intermittent and ephemeral streams with mining debris, and the ecological fallout extends far beyond the edge of the valley fill, into the surrounding forest and the larger perennial streams and rivers down the mountain.
A valley fill, for instance, profoundly alters forest hydrology. When the rainwater hits a valley fill instead of a stream bed, it filters through broken shale and sandstone before flowing out at the bottom. Ordinary minerals liberated from deep inside demolished mountains — heavy metals such as selenium and magnesium — infiltrate it and flow downstream.
During the Bush years, government scientists produced a growing pile of studies that show how valley fills foul waterways. Fish and Wildlife Service biologist A. Dennis Lemly found that heavy concentrations of selenium in West Virginia’s Mud River, downstream from the huge Hobet 21 mountaintop mine, were causing deformed fish. A 2008 EPA study showed that a huge increase in “specific conductance” — the concentration of electricity-conducting metallic ions — immediately downstream from valley fills was wiping out entire populations of mayflies, a ubiquitous species whose disappearance indicates broader ecological effects.
Destroying waterways and aquatic life are, of course, illegal. But in the bureaucratic funhouse of mountaintop removal, laws may say one thing while actions point in the opposite direction. By a commonsense interpretation, valley fills violate parts of two federal laws, the Clean Water and Surface Mining and Reclamation Acts. But since the 1990s the coal industry and its allies in government have engineered a series of legal and regulatory workarounds.
For instance, the surface mining law banned mining activity within a hundred feet of a stream if it had a significant impact on water quality or the environment — something that would seem to prohibit actually dumping mining debris into the stream in question. But that rule was never enforced, and in the waning days of the Bush administration it was rewritten to make the practice legal. (Interior Secretary Ken Salazar recently announced plans to revoke that change, but left it unclear whether he intended to enforce a ban on dumping.)
Yet it’s the Clean Water Act that environmental groups have relentlessly focused on, filing a series of lawsuits charging the Corps with failing to meet its enforcement obligations, which state that “dredged or fill material should not be discharged into the aquatic ecosystem” if it will cause “significant degradation to the waters of the United States.” Among other things, that includes disrupting the life cycles of aquatic organisms and the loss of fish and wildlife habitat. Again, it seems logical to assume that burying a mountain stream would meet those criteria. But that’s not the way it’s worked up to now.
Put simply, the Corps evaluates the environmental effects of valley fills using techniques that many scientists criticize as insufficiently rigorous. U.S. District Judge Robert Chambers agreed, twice ruling that the Corps’s method was “arbitrary and capricious” (one of Chambers’ decisions — which helped to create the current backlog of permit applications — was later overturned on the grounds that agencies deserve deference in interpreting their own regulations, a victory for the oft-criticized Corps).
Scientists and environmental groups also object to the Corps’ approach to mitigation, the notion that you can make up for destroying one stream by building another one. That might mean digging a new stream bed nearby, or “mitigation banking” in which a mining company pays to protect and restore a wetland elsewhere.
But streams evolve in landscapes over the millennia and support complex webs of life that cannot be easily replaced, if at all. “Stream creation is outside the realm of current science,” says Margaret Palmer, a biology professor and stream specialist at the University of Maryland, who testified as an expert witness for environmental groups in the suits Chambers heard. “There’s no evidence you can do it. There’s no evidence at this point in time it’s even feasible.” A typical stream construction technique practiced by coal companies, she says, is crude at best: Old drainage channels are converted to “streams.”
At least up to now, the coal industry has usually gotten what it wants, giving it little incentive to negotiate.
This dispute remains unresolved in part because the law divides responsibility for valley fills between the Corps, EPA, the Interior Department’s Office of Surface Mining, and the states. “The permitting process is complicated, there’s a lot of agencies involved,” says Jeff Collins, a Corps regulatory program manager overseeing valley fills. “The EPA isn’t as close to it as the Corps is. So they don’t always understand everything we look at, the lengths we go to to minimize impacts and look for alternatives.” Moreover, the rules limit the Corps’ jurisdiction to the stream itself and 100 feet on either side. “The Corps is saying, what we have to look at is the stream,” Collins says, “there are other agencies that control what happens on the whole mine site.”
It’s the EPA’s job to look at the entire ecosystem. And the crossed lines of authority have created a regulatory morass and led to erratic, desultory enforcement. The result has been drift: Coal companies can get permission to demolish mountains and fill streams, but they must also deal with more regulatory hurdles while facing continued uncertainty. It’s this situation, untenable for all involved, that the EPA is attempting to resolve.
“It’s up to the administration, but it would be ideal if we could get the Corps, EPA, OSM [Office of Surface Mining], and the states to sit down and look at the policy of [mountaintop removal] coal mining and come to a decision on how to move forward”¦” says Brian Frazer, chief of the EPA’s wetlands and aquatic resources regulatory branch. “Once it happens, coal mining will continue, but it will be more environmentally friendly. Personally, I don’t think we are too far away from that.”
But the stakeholders do not seem eager for a compromise. At least up to now, the coal industry has usually gotten most of what it wants, giving it little incentive to negotiate. Environmental groups want to see mountaintop removal banned outright. And the Corps, which must also participate in any negotiation, has jealously guarded its permit authority from what it sees as EPA interference.
Yet there are some signs of change from the top in addition to the EPA’s actions. Obama’s nominee to run the Corps, Jo-Ellen Darcy, handled environmental issues for the Senate Finance Committee and is well-regarded by environmental groups. But the Corps is a very traditional bureaucracy and notoriously resistant to change, and she’ll have many other challenges.
Moreover, it’s doubtful that a true middle ground — in which mountaintop removal continues with limited changes and the mountain environment is preserved — even exists.
Frazer said the EPA hopes to limit the damage to stream beds by reducing the size of some valley fills, paying more attention to their placement, and by doing more, and better, stream restoration. Such a negotiated, incremental approach could blunt some of the damage, but may not significantly reduce the vast scale of mountaintop projects.
And coal companies will resist major changes, especially in the size of valley fills. A study commissioned by the EPA found that sharply limiting the size of valley fills would also restrict the amount of coal harvested. Capping them at 35 acres — a fraction of the size of the average fill, which can cover hundreds of acres — would reduce mountaintop coal production by 77 percent. That would be a dream come true for environmentalists — and a nightmare for the coal industry.