Mountaintop removal

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Mountaintop removal mining (MTR) is a form of surface mining increasingly being used to replace underground mining to extract coal from the Appalachian Mountain regions of eastern Kentucky, southwest West Virgina, southwest Virginia and eastern Tennessee[1]. The process involves using explosives to remove up to 1,000 vertical feet of rock to reach the coal seams. The resulting debris is often scraped into the adjacent valleys in what is called a valley fill. [2][3][4]

Because of the physically destructive nature of the practice, MTR is controversial and has received national and international media attention prompted by a groundswell of grassroots activism and resistance by local residents, environmentalists, social justice activists and others[5][6]. Controversy over the practice stems from the extreme topological, ecological and hydrological changes that the mining site and surrounding areas undergo, as well as from the storage of the toxic waste material generated from the mining and processing of the coal[7]; proponents of MTR point to its efficiency, its ability to provide jobs, and the resulting increase of flat land in a region where there is otherwise little available.

Contents

History

Mountain Top Removal documentary trailer

Sparked by the oil crises of the 1970s, increased demand for coal in the United States created incentives for a more economical form of coal mining than the traditional underground mining methods that required hundreds of workers, triggering the first widespread use of MTR. The prevalence of the mining method expanded further in the 1990s to retrieve relatively low-sulfur coal, a cleaner burning form, which became desirable as a result of amendments to the U.S. Clean Air Act that tightened emissions limits on high-sulfur coal processing.[8] With an increasing call for energy independence in the U.S., as well as a growing call for Coal-To-Liquids and "clean coal technologies", MTR has continued to expand into the 2000s.

Occurrence

MTR in the United States is most often associated with the extraction of coal in the Appalachian Mountains, where the EPA estimates that 2,200 square miles (5,700 km²) of Appalachian forests will be cleared for MTR sites by the year 2012.[9] It occurs most commonly in West Virginia and Eastern Kentucky, the top two coal producing states in Appalachia, with each state using approximately 1000 metric tons of explosives per day for the purposes of surface mining.[10] The technique is also being used increasingly in central Tennessee and southwest Virginia.[11] At current rates, MTR in the U.S. will mine over 1.4 million acres by 2010,[12], an amount of land area that exceeds that of the state of Delaware.

Process

Photo of mountaintop removal site near Kayford Mountain in West Virginia. Photo: Vivian Stockman (www.ohvec.org), Flight provided by Southwings (www.southwings.org)

Because no existing vegetation survives MTR, the targeted land is clear-cut and either sold for lumber or burned. Miners then use explosives to blast away the overburden, the rock and subsoil that lies above a coal seam, to expose the coal. The overburden is pushed into a nearby valley or hollow, creating a pile below called valley fill. A dragline excavator removes the coal, which is then transported to a processing plant and washed. Millions of gallons of waste from coal processing, called sludge or slurry, are often stored nearby in open pools held back by earthen dams. [8]

Because coal usually exists in multiple geologically stratified seams, miners can often repeat the blasting process to mine over a dozen seams on a single mountain, increasing the mine depth each time. This can result in vertical descension of hundreds of extra feet into the earth.[8]

Once coal removal is complete, mining operators routinely hydro-seed the stripped site with a quick growing, non-native and invasive legume called lespedeza.[13]

A series of NASA satellite photos over 26 years - from 1984 to 2010 - shows the cumulative effects of MTR on the Appalachian Mountains in southern West Virginia over time.[14]

Production

Appalachian coal production declines

The U.S. Department of Energy projects that by 2015, the amount of coal mined in Appalachia will be just half of what it was in 2008: production is expected to drop to 112 million tons by 2015, compared to 234 million tons mined in 2008. The Energy Information Administration said in a 2011 outlook statement that the region's coal is "extensively mined" and its higher-cost coal will slowly be "supplanted by lower cost coal from other supply regions."

"The seams of coal that are left in this area are harder and harder to mine, and they're thinner and thinner and thinner," said Leonard Fleming, a retired Kentucky miner and union leader in Letcher County who worked in the industry for 32 years. The thinner seams make it less cost-effective for a coal operator to send miners underground, leading to increased use of MTR. Yet overall production is still declining. In 2010, Arch Coal told investors that the region's coal "is in secular decline – faced with depleting reserves and significant regulatory hurdles."

While coal companies and supporters point to the Obama Administration and EPA regulations for the decline, hiring in eastern Kentucky and southern West Virginia doubled at surface mines over the last decade, yet overall production fell by 25 percent there in all mines under and above ground, suggesting there is less coal available. Production dropped in Central Appalachia's underground and surface mines to 196 million tons in 2009 from 261 million in 2000 – a 25 percent decline.[15]

Exports

The 2012 Congressional report, “Our Pain, Their Gain,” analyzed U.S. coal mine data and found that overall coal exports have nearly doubled since 2009 to 107 million tons in 2011, accounting for almost 12 percent of U.S. production. Three out of every four tons that are exported come from the Appalachian region, many of them mountaintop removal mines. Some of the top findings of the report included:

  • The number of mountaintop removal, steep slope, and surface mines exporting coal from West Virginia, Pennsylvania, Kentucky, and Virginia increased from 73 mines in 2008 to 97 in 2011.
  • Coal exports from the mines in these four states have grown by 91 percent since 2009 to 13.2 million tons in 2011.
  • 25 of the mines exported more than half of their production in 2011. Five mines are shipping 100 percent of their coal abroad.
  • Overall, the 97 mines exported 27 percent of their production in 2011, from 13 percent exported in 2008.

Patriot Coal to halt mountaintop removal

On November 14, 2012 it was announced that Patriot Coal was going to stop all mountaintop removal in Central Appalachia under a historic agreement with Sierra Club, Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy.[16] Patriot Coal is to become the first U.S. coal operator to announce they were going to phase out and eventually stop all large-scale mountaintop removal mining. The proposed agreement, which was presented to a federal judge, allows the company to postpone as much as $27 million in expenses into 2014 and beyond. Thus, the likelihood the company can successfully emerge from Chapter 11 protection has improved. The agreement caps the amount of coal that Patriot can mine from surface operations at 6.5 million tons in 2014, falling to 5 million tons in 2017. By January 2018, the amount is limited to no more than 3 million tons a year.[17]

Economics

Just over half of the electricity generated in the United States is produced by coal-fired power plants. MTR accounted for less than 5% of U.S. coal production as of 2001.[12] In some regions, however, the percentage is higher, for example MTR provided 30% of the coal mined in West Virginia in 2006.[18]

Historically in the U.S. the prevalent method of coal acquisition was underground mining, a process that is very labor-intensive. Through the use of explosives and large machinery, MTR mining can extract more than two and a half times as much coal per worker per hour than in traditional underground mines [19], thus greatly reducing the number of workers needed. The industry lost approximately 10,000 jobs from 1990 to 1997, as MTR and other more mechanized mining methods became more widely used.[20] In addition, because MTR sites employ fewer miners per amount extracted, labor unions have less representation, and the United Mine Workers of America have charged that anti-union practices are often associated with MTR. They have also called for additional legal measures to protect communities from the degradation and destruction that results from nearby blasting.[21] The coal industry asserts that surface mining techniques such as mountaintop removal are safer for miners than sending miners underground.[22]

Proponents argue that in certain geologic areas, MTR and similar forms of surface mining allow easier access to coal than traditional underground mining, and that it is the most cost-effective method of extracting coal. However, the counties that host MTR are often the poorest in Appalachia. For example, in McDowell County, West Virginia, which produces the most coal in the state, over 37% of residents live below the poverty line.[23] In Kentucky, counties with coal mining have economies no better than adjoining counties where no mining occurs.[24]

Report claims coal's costs in premature deaths outweigh economic benefits

A study co-authored by a West Virginia University professor reports that coal mining in Appalachia costs five times more in premature deaths than the industry provides in jobs, taxes, and other economic benefits. According to the study, the coal industry creates about $8 billion per year in economic benefits for the Appalachian region, but even using conservative estimates, the cost of premature deaths attributable to coal mining is valued at approximately $42 billion. Michael Hendryx, along with co-author Melissa Ahern of Washington State University, recommends that politicians seek other means for improving the economy and quality of life of Appalachia, in such areas as renewable energy, sustainable timber, small-scale agriculture, and ecosystem restoration.[25]

The authors acknowledge that their study is not a complete cost-benefit analysis of the coal industry. Such a study, they suggest, would need to include reduced employment due to illness, reduced poverty values associated with coal mining, increased expenditures for public programs like Medicaid and food stamps, and the costs of natural resource destruction.[25]

Public opinion

2011 polls

A 2011 national poll by CNN and another poll of Appalachian states by Lake Research Partners & Bellwether Research found that most Americans disapprove of mountaintop removal (MTR) mining. The CNN poll of over 1,000 U.S. residents found that 57% say they oppose MTR mining. After criticism of the poll by the West Virginia Coal Association, which suggested the disapproval was due to opposition from non-coal mining states, Earthjustice, Appalachian Mountain Advocates, and the Sierra Club funded the second sample poll of the opinions of 1,315 registered voters in Kentucky, West Virginia, Virginia, and Tennessee. That survey found that 76% of those polled support fully enforcing and even increasing protections in the Clean Water Act related to MTR mining. Sixty percent said Clean Water safeguards are either good for the economy or have no impact (40 percent and 20 percent, respectively), as compared with 25 percent who think they are bad for the economy. Asked about MTR outside the context of the Clean Water Act, 38% said they oppose the practice while 24% said they support it, and 38% of voters were unsure. When voters were provided with a brief description of the practice (“coal companies in [STATE] mine coal from mountains through a process called mountaintop removal mining where the top of a mountain is removed to extract the coal and waste is disposed in nearby valleys and streams”), opposition increased to 57%, similar to the CNN poll.[26]

2008 Poll shows Amerians oppose mountaintop removal

Stop Mountaintop Removal

The results of nationwide poll on mountaintop removal conducted in October 2008 showed that Americans oppose mountaintop removal coal mining by a wide margin. Researchers questioned 1,000 likely voters nationwide. Half the participants were asked if they supported or opposed mountaintop removal, without any additional information on the subject. 39 percent opposed mountaintop removal, versus 15 percent who supported it. 46 percent were undecided. The other half of partipants were given a short definition of mountaintop removal; of these voters, 61 percent opposed mountaintop removal, versus 16 percent who supported it. 23 percent were undecided. Other findings included:[27]

  • Opposition to mountaintop removal was highest in the Northeast, where 79 percent of people polled were against it. In the South, which included the biggest eastern coal states of Kentucky and West Virginia, opposition was 59 percent.
  • By a margin of more than 2 to 1, voters polled disagreed that environmental protections are bad for jobs and business. 47 percent believed environmental protections are good for the economy, versus 20 percent who believed such protections are bad for the economy.
  • Two-thirds of Americans are against the repeal of the stream buffer zone rule, which bans mining activities within 100 feet of streams.

Nike Ad

In September 2010, Nike began running an ad with a background of a massive strip-mine or mountaintop removal operation to display their Pro Combat football uniforms. Nike's campaign was marketed as a "tribute to the hardworking people of the Mountain State, as well as the fallen miners in the Upper Big Branch Mine Disaster in April." But instead of featuring underground miners, such as those who died at the Upper Big Branch disaster, Nike's ad featured an open strip mine with a dramatic voice over: "It's just the way things are done in West Virginia." After people objected to the ad as unrelated to the disaster and a glorification of mountaintop removal, NIKE agreed to modify it.[28]

Banks move to restrict MTR financing

Bank of America announces phase out of MTR financing

In December 2008, Bank of America announced that it would "phase out financing of companies whose predominant method of extracting coal is through mountain top removal. While we acknowledge that surface mining is economically efficient and creates jobs, it can be conducted in a way that minimizes environmental impacts in certain geographies."[29] Rainforest Action Network, which has pressed Bank of America to halt financing of mountaintop removal mining and coal-fired power plants, lauded the decision as a "giant leap forward...We hope that Citi, JP Morgan Chase, and other banks follow Bank of America's lead."[30]

PNC ends MTR funding

In the summer of 2010 PNC Financial Services Group, Inc. published a 2010 Corporate Responsibility Report saying PNC would be moving away from funding MTR. The report read: "MTR is the subject of increasing regulatory and legislative scrutiny, with a focus on the permitting of MTR mines. While this extraction method is permitted, PNC will not provide funding to individual MTR projects, nor will PNC provide credit to coal producers whose primary extraction method is MTR. PNC will continue to monitor this industry while various regulatory issues are addressed through legislation and public policy" (p. 4).

Then in November 2010 PNC announced that it would no longer fund projects associated with mountaintop removal coal mining. “This move makes PNC bank number seven to issue a position on MTR,” the Rainforest Action Network’s Amanda Starbuck wrote of the decision, “following in the footsteps of Bank of America, Citi, Morgan Stanley, JPMorgan Chase, Wells Fargo and Credit Suisse.”

PNC’s decision leaves UBS and GE Capital the only major banks that support mountaintop removal.[31]

MTR policies of other banks

The following banks have policies restricting financing for MTR:

2011 RAN/Sierra Club report

A 2011 report by Rainforest Action Network and the Sierra Club, "Policy and Practice: 2011 Report Card on Banks and Mountaintop Removal" listed PNC, Citigroup, and UBS as the top three financiers of mountaintop removal coal mining. The report card reviewed the financing practices of Bank of America, Citi, Credit Suisse, Deutsche Bank, GE Capital, JPMorgan Chase, Morgan Stanley, PNC, UBS and Wells Fargo. These ten banks have provided more than $2.5 billion (in 16 loans and bond underwriting deals) to mountaintop removal companies since January 2010, according to the report. Deutsche Bank and GE Capital received an F for not examining the issue or responding to the report.

Of the worst-performing banks, the report wrote that:

  • Citi-despite announcing a public policy on MTR extraction in 2009, the bank has since doubled its exposure to the sector.
  • UBS-immediately after announcing a policy stating that it "needs to be satisfied that the client is committed to reduce over time its exposure to this form of mining," the bank acted as an advisor on the Massey-Alpha merger, which created the largest single mountain top removal company in the country, responsible for 25% of coal production from MTR mines.
  • PNC-although adopting a decision to no longer fund MTR operations, PNC previously had large exposure to MTR companies, and the report is waiting to see the effects of the new policy decision.

Five banks have issued new policies on mountaintop removal since a 2010 report card: Chase, Wells Fargo, PNC, UBS, and Credit Suisse. Credit Suisse had the best record for the latest report card: "The bank has no exposure to coal-mining companies that practice mountaintop removal extraction."

Protest actions against mountaintop removal

Earth First! and Mountain Justice Summer activists blockade a road leading to National Coal's mountaintop removal coal mine on Aug. 15, 2005.

Aug. 15, 2005: Earth First!/Mountain Justice Summer blockade of Campbell County mountaintop removal site

On August 15, 2005, Earth First! and Mountain Justice Summer activists blockaded a road leading to National Coal's mountaintop removal coal mine in Campbell County, Tennessee. Activists stopped a car on the road, removed its tires, locked themselves to the vehicle, and erected a tripod with a person perched on top of it. National Coal workers arrived and threatened the protestors; one tried to ram the tripod with his car. Eleven people were arrested; the police treated the arrested activists very roughly, endangering their safety.[32][33]

February 3, 2009: Coal River Mountain activists arrested

Five Coal River Mountain activists were arrested and charged with trespassing after locking themselves to a bulldozer and a backhoe at a Massey Energy mountaintop removal site. The activists planted a banner for the Coal River Wind Project in protest of the impending 6,600 acre mountaintop removal strip mine. Later in the day, eight more activists were arrested during a demonstration against Massey's preparations to blast the mountain. Environmentalists contend that the mountain is better developed for a wind energy project, and that the blasting could destabilize the world's largest toxic coal slurry impoundment.[34][35]

February 16, 2009: Two arrested for halting blasting at mountaintop removal site, Raleigh County, WV

On Monday, February 16 2009, two protesters were arrested for interfering with mountaintop removal blasting on the Massey Energy-owned Edwhite site near the Shumate sludge dam in Raleigh County, WV. The Shumate sludge dam holds back 2.8 billion gallons of toxic sludge, the waste by-product of chemically cleaning coal, and sits directly above the Marsh Fork elementary school. aerial map [36]

February 17, 2009: Hundreds rally for end to mountaintop removal, Frankfort, KY

Hundreds of activists from ILoveMountains and Kentuckians for the Commonwealth, as well as actress Ashley Judd, gathered outside the state capitol building to protest mountaintop removal mining and rally for proposed legislation that been stuck for several years in the House Natural Resources and Environment Committee. The bill, known as the Stream Saver Bill, is sponsored by Rep. Don Pasley, D-Winchester, and would prohibit mining operations from dumping refuse into adjacent streams. Coal interests in the legislature have thus far managed to keep the bill from getting a vote on the floor.[37][38]

March 5, 2009: Activists protest mountaintop removal, Pettus, WV

Five activists protested at a Massey Energy Edwight mountaintop removal site on Cherry Pond Mountain, unfurling a banner that read "Stop the blasting, Save the kids." The protesters were calling attention to the blasting taking place near a dam that holds 2.8 billion gallons of sludge and lies just a few hundred yards above the Marsh Fork Elementary School. All five were arrested.[39]

April 16, 2009: Activists arrested at Massey Energy mine in West Virginia

Five people were arrested when activists from Climate Ground Zero unfurled a 40-foot-tall banner that read, "EPA stop MTR" at Massey Energy's Edwight mountaintop removal mine. Massey recently starting blasting at the mine directly above the town of Naoma. Activists are concerned because the blasting is near a slurry dam, which poses a risk to the local Marsh Fork Elementary School.[40]

May 23, 2009: Police remove 11 activists from mountaintop removal protests in West Virginia

State police removed eleven activists from two civil disobedience actions in West Virginia. In one action, six people locked themselves to mining equipment at a Patriot Coal mine on Kayford Mountain. Another group raised a 20-by-60-foot banner at Massey Energy's Brushy Fork coal slurry impoundment near Pettus. The protesters are part of a coalition that includes Mountain Justice, Climate Ground Zero, and concerned citizens.[41] Two of the eleven activists arrested were released from custody by May 25. Mike Roselle, the director of Climate Ground Zero, said the group was raising money to pay bail for the others.[42]

June 18, 2009: Activists scale 20-story dragline at MTR site in Twilight, WV

Four protesters visited the Massey Energy Twilight mountaintop removal site in Boone County, WV, and climbed a 20-story strip mining machine called a dragline. The activists unfurled a 15 foot by 150 foot banner that read, "Just Stop Mountaintop Removal." The action launched a week of protests at West Virginia MTR sites, leading up to a special action on June 23 in the Coal River Valley area. The June 23rd action will include local coalfield residents, NASA climate scientist James Hansen, actress Daryl Hannah, former US Representative Ken Hechler, and many others.[43]

June 23, 2009: Dozens arrested protesting at Massey Energy site in Coal River Valley, WV

94-year-old former US Representative Ken Hechler, NASA climate scientist James Hansen, RAN director Michael Brune, actress Daryl Hannah, Goldman Prize Award winner Judy Bonds, and many other coal activists and local residents were arrested the Coal River action. The protesters crossed onto Massey Energy property to protest mountaintop removal and the destruction of mountains above the Coal River Valley community. Massey supporters were on scene and often behaved aggressively, shouting and ripping power cords out to silence the PA system. One Massey supporter assaulted Judy Bonds and attempted to assault another, and was arrested and charged with battery. The action launched a yearlong national campaign to end mountaintop removal mining.[44]

August 11, 2009: Activists lock down Department of Environmental Protection in Charleston, WV

Four protesters locked themselves to the entrance at the West Virginia DEP, displaying signs that read, "Closed Due to Incompetence" and "Department of Encouraging Pollution." The activists demanded that the EPA and Office of Surface Mining, Reclamation, and Enforcement take over of the agency's programs. They also called for Secretary Randy Huffman's resignation.[45]

August 25-31, 2009: Activists occupy trees to stop blasting in Coal River Valley, WV

Protesters from Climate Ground Zero and Mountain Justice occupied treetops at the edge of Massey Energy’s Edwight mountaintop removal site in Raleigh County, West Virginia. The activists unrolled banners reading "Stop Mountain Top Removal" and "DEP – Don’t Expect Protection." They were less than 30 feet from the mine and less than 300 feet from the blasting activity, which was forced to stop because of their close proximity.[46] The protest lasted six days, when the last activist finally descended and was arrested. A spokesman for Climate Ground Zero said sleep deprivation had been endangering the treesitters.[47]

October 23, 2009: Activists block coal trucks in West Virginia

Eight activists blocked a road at a Kanawha County, WV surface mine to protest mountaintop removal. The mine is owned by Ed Coal Co. The protesters were arrested and charged with trespassing, consipiracy, and obstructing an officer.[48]

October 30, 2009: Activists protest mountaintop removal at EPA offices throughout the U.S.

Activists protest at EPA on October 30.

Activists from Mountain Justice, Rainforest Action Network, and other groups protested outside EPA's D.C. headquarters and outside other EPA offices throughout the country.[49] More than 50 people staged a sit-in and rally at EPA headquarters. More than two dozen events took place on the same day, including actions in Atlanta, Boston, Dallas, Kansas City, and San Francisco. The activists are calling for immediate action to stop mountaintop removal coal mining, particularly targeting the Massey Energy blasting site at West Virginia's Coal River Mountain.[50]

November 21, 2009: Protestors stop blasting on Coal River Mountain: Pettus, WV

Two activists locked themselves to a drill rig and two others unfurled a banner reading "Save Coal River Mountain" to protest Massey's blasting at the Bee Tree mountaintop removal site. Residents are concerned because the blasts are 200 feet from the Brushy Fork Impoundment, which is permitted to hold nine billion gallons of coal sludge. Massey Energy itself estimates that 998 people would die if the dam breaks. The activists said they plan to remain locked down until they are arrested.[51]

December 7, 2009: 300 activists protest mountaintop removal in Charleston, WV

300 activists rallied outside the West Virginia Department of Environmental Protection to demand a halt to the blasting at Coal River Mountain. Environmental attorney Robert F. Kennedy Jr. spoke the protest, calling mountaintop removal a crime and saying that the environmental and health impacts of burning coal make it neither a cheap nor clean source of energy. About 200 coal miners and Massey Energy representatives attended the rally to jeer and try to drown out the speakers.[52]

January 21, 2010: Tree-Sitters Shut Down Infamous Mountaintop Removal Operation in West Virginia

Three non-violent climate change activists associated with Climate Ground Zero, perched themselves on 60-foot high platforms to protest the Bee Strip Mine on Coal River Mountain. Reports indicate that the protesters halted the day's operations. The activists were David Aaron Smith, Amber Nitchman and Eric Blevins. According to Climate Ground Zero reports, the three scaled trees by the access road to Massey Energy's infamous mountaintop removal operation near the company's Brushy Fork Impoundment, such as Brushy Eagle Mine.[53]

March 2010: EPA Headquarters Protest

In late March 2010, environmental activists, some associated with the group Rainforest Action Network, camped out in front of Washington DC's headquarters for 32 hours in an attempt to send a message to EPA Administrator Lisa Jackson to end mountain top removal. Purple tents were erected and protesters perched on tripods. As reported by the blog It’s Getting Hot in Here, which explained the action:

Almost every person who passed through our ‘Purple Mountain’s Majesty’ and underneath the banner “EPA: Pledge to End Mountaintop Removal Coal Mining in 2010” has been incredibly encouraging of our action. EPA employees, tourists and DC residents all demonstrated their support on the issue.
In addition to the many comments from EPA employees that “we are doing a great job” and “please keep doing what you’re doing,” Lisa Jackson personally tweeted her response. Administrator Jackson said in her tweet: “People are here today expressing views on MTM, a critical issue to our country. They’re concerned abt human health & water quality & so am I."[54]
Chase Bank Die In - RAN Chicago, April 2010.

Author Jeff Biggers notes that while Lisa Jackson recognizes the protests, she nonetheless used the acronym "MTM" which is the industry phrase for mountain top mining instead of the activists term, MTR, which is short for mountain top removal. Biggers also notes that an EPA spokeswoman yesterday said the protest was “based on a fundamental misunderstanding of EPA’s role” and explained that the EPA does not regulate the mining industry, but is only “responsible for ensuring that projects comply with the Clean Water Act.”

“Except,” notes Biggers, “it’s the mining industry that isn’t complying with the Clean Water Act.”[55]

April 2, 2010: JPMorgan Chase Protest in Chicago

On Friday April 2, 2010 activists associated with the Rainforest Action Network (RAN) in Chicago staged a "die-in" at a JPMorgan Chase bank in downtown to protest the bank's investment in mountaintop removal (MTR) projects. Between thirty and forty people took part in the protest but none were arrested. It was RAN's first such direct action campaign to pressure the company to abandon its MTR investments.

"JPMorgan Chase is on the run in this campaign and they are looking for a way to end this campaign," said RAN activist Adam Gaya. "[They are seeing that] people are willing to go beyond making a phone call and sending a email [and are] canceling their account and taking direct action."[56]

May 17, 2010: Climate Ground Zero Activists Blockade Massey Energy Headquarters

On the morning of May 17, 2010 two activists associated with Climate Ground Zero erected a tripod tent on the driveway of Massey Energy's regional headquarters in Boone county, West Virginia. The two activists, EmmaKate Martin and Benjamin Bryant, locked themselves to the base of one of the poles. Both were arrested and charged with misdemeanor offenses of trespassing, conspiracy to commit a misdemeanor, obstructing an officer and littering. Their bails were set for $100,000 each by West Virgina Magistrate Snodgrass.

The banner they hung from the tripod read “Massey, Profits Before People & Mountains, Fight Back!” The bail was the largest ever set against any activists conducting non-violent actions against mountaintop removal in West Virginia.[57]

September 14, 2010: Rainforest Action Network Dumps 1,000 Pounds of Dirt on EPA Sidewalk

In September 2010 the Rainforest Action Network dumped 1,000 pounds of Appalachia dirt on the sidewalk of EPA headquarters in Washington DC in protest of the mine. RAN's message: "EPA: Don't Let King Coal Dump On Appalachia." No arrests were reported.[58]

September 27, 2010: More than 100 arrested in Washington DC for coal protest

At a protest in front of the White House in opposition to mountaintop removal, over 100 people were arrested. In all, it was stated that 2,000 people took part in protests around the city. Hundreds of people marched down Pennsylvania Avenue to Lafayette Park, which faces the White House, according to protesters and media accounts. The march included at least one stop, at U.S. EPA headquarters, protesters said. It was reported that James Hansen, who heads the NASA Goddard Institute for Space Studies, was among those arrested.

The crowd of mostly youthful ralliers carried signs like "Blowing Up Mountains for Coal Poisons People" and "Mountain ecosystems won't grow back." Some carried small white crosses adorned with messages such as "water pollution" and "corporate greed."[59][60]

Wendell Berry Speaks with Jeff Biggers about Sit-in

February 11, 2011: Wendell Berry Joins Retired Coal Miners and Residents in Kentucky Rising Capitol Sit-in

On Friday, February 11, 2011, poet and activist Wendell Berry joined a group of affected coalfield residents, retired coal miners and bestselling authors have launched a sit-in in the office of Kentucky Governor Steve Beshear to oppose the practice of mountaintop removal.

“I feel good about our conversation with governor because he made our difference very plain and clean cut. He thinks that all we have on our side are our own personal opinions, and that he evidently has on his side established governmental policy," Wendell Berry was quoted as saying after meeting with Kentucky Governor Steve Beshear. "And he thinks that surface mining can be done without harm to the land or streams or the people. It’s very plain to me that nobody on our side thinks that it is true because they’ve seen the results with their eyes or experienced the results in their own families and homes. I would say moreover that the idea here that two sides can legitimately disagree is simply wrong. I don’t think there can be a legitimate disagreement about the destruction of ecosystems and watersheds.”

Protesters left the Governor's office on the morning of Monday, February 14, 2011. A total of 14 people participated in the weekend long sit-in.[61][62]

Protester and Morehead State University Professor John Hennen stated that when the group of activists spoke with Gov. Beshear the two sides did not come to an agreement, but the governor said he'd visit coal fields and residents in Eastern Kentucky, an area affected by mountaintop removal.

“He heard some of our concerns and consented to come and visit some of the coal fields and meet with coal residents in eastern Kentucky whose lives and properties have been directly damaged,” said Prof. Hennen.[63]

March 2011: Activists target Portland, Oregon area Bank of America ATMs

Bank of America ATMs in Downtown Portland on March 1, 2011 were targeted by climate change activists in the area. Notices were placed on the ATMs which informed customers that the ATMs were “temporarily closed until in invests responsibly in renewable energy.” Bank of America was targeted for its financial support and investments in the practice of mountaintop removal.[64]

April 2011: Rising Tide North America stages bank protest in Portland, Oregon

On Sunday, April 2, 2011, activists affiliated with Portland's Rising Tide chapter targeted major banks in the Portland metro areas as a call to them to divest from the fossil fuel infrastructure, including coal. The banks included Wells Fargo and Bank of America for this investments in practices such as mountaintop removal. Some participants staged a "die-in" on sidewalks while others used mud to stick "dirty money" to bank walls and windows, letting customers know the banks were "closed for climate crimes". No arrests were reported.[65]

===August 2011: Tree-Sit on Coal River Mountain===

Treesit on Coal River Mountain.

On July 20, 2011, protesters associated with the RAMPS Campaign halted blasting on a portion of Alpha Natural ResourcesBee Tree Mine mountaintop removal mine by ascending two trees and hanging banners that read “Stop Strip Mining” and “For Judy Bonds” in honor of the strip mining activist. The activists demand that Alpha Natural Resources stop strip mining on Coal River Mountain and that the West Virginia Department of Environmental Protection prohibit future strip mining in the Coal River Watershed. As of January 2011, Marfork Coal Company, a subsidiary of Alpha, has destroyed about 75 acres of Coal River Mountain on the Bee Tree permit, the only active mountaintop removal permit on the mountain. Lisa Henderson, Judy Bonds’ daughter and Coal River Valley resident, said she saw the action as a continuation of her mother’s work.[66]

On July 27, 2011 it was reported that that two tree-sit activists, Junior Walk and Eli Schewel, were arrested by state police on the first day of the tree-sit protest and charged with trespassing at the Bee Tree surface mine site.[67] It was reported on August 3, 2011 that Becks Kolins, who had been occupying a tree in protest, descended the tree voluntarily and was arrested a day earlier by the West Virginia State Police. Kolins, along with Catherine-Ann MacDougal, had been sitting in a tree eighty feet above the ground since July 20th to protest the strip mining of Coal River Mountain. [68]

Catherine-Ann MacDougal remained in her tree remained in her tree until August 19, 2011 at which point she descended. “The reality of limited resources now necessitates my descent but this is not the last they will see of us. I plan to remain here and fight for this mountain for years to come,” said MacDougal.[69]

December 2012: Protesters Speak Out Against Investments in Mountaintop Removal at 15 PNC Bank Branches

On December 2, 2012 Quakers, students, and community activists held a coordinated action at 15 PNC banks across the east coal yesterday as part of Earth Quaker Action Team‘s (EQAT) effort to end PNC’s investments in mountaintop removal. At many locations, concerned community members brought samples of drinking water taken from a well in Eunice, West Virginia that had been contaminated by mountaintop removal operations financed by the bank.[70]

Escalating Legal Action Against Mountaintop Removal Activists

Anti-coal protesters in West Virginia have been facing escalated legal struggles as a result of their non-violent actions against mountaintop removal. Protests in 2008 were often met with arrests for trespassing, where the individuals involved in the actions were ticketed and released. Since that time, bails have increased as well as charges. Protesters have been denied the right to a bail bondsman in some cases. Critics note that this has been done in an attempt to keep the activists in jail longer.

Massey Energy, which has been the target of many of the most recent protests in West Virginia, has filed multiple civil lawsuits against these activists arrested on their property.[71]

Lawsuits demanding injunctions and so-far unspecified money for “damages” have been filed against dozens of these protesters: one suit in Raleigh County against participants in several protests there early in 2009, one suit in Boone County against participants in an action there, and a separate Raleigh County suit against participants in a tree-sit action last summer. Protesters not actually named in any of these suits have been found in contempt of a court’s injunction for “acting in concert” with one of a suit’s named parties; that ruling is currently being appealed. In addition, Massey recently filed suit in federal court against participants in the January tree-sit protest at Massey's Marfork Complex, requesting at least the minimum of $75,000 in damages that would make such a case eligible for federal court.[71]

Legislation in the United States

Mountaintop removal pt. 1 of 2
Mountaintop removal pt. 2 of 2

In the United States, MTR is allowed by section 515(c)(1) of the Surface Mining Control and Reclamation Act (SMCRA). Although some surface coal mining sites must be reclaimed to the land's pre-mining contour and use, regulatory agencies issue waivers using a loophole in SMCRA that allows MTR.[72] In such cases, SMCRA dictates that reclamation must create "a level plateau or a gently rolling contour with no highwalls remaining."[73]

On three occasions, federal judges in West Virginia and Kentucky have issued major rulings that would force the industry into compliance with federal law and effect their ability to mine coal using MTR. In each case the rulings from the lower courts have been overturned on appeal in the 4th U.S. Circuit Court of Appeals in Richmond, Va.[74]

On March 23, 2007, U.S District Judge Robert C. Chambers ruled that the Army Corps of Engineers had illegally issued four valley fill permits to Massey Energy Company by not "thoughtfully considering" the mountaintop removal mining's potential impacts, citing "alarming cumulative stream loss" and "dramatic environmental consequences". The 4 permits issued by the Corps would have permanently buried over 12 miles of streams and strip about 3,800 acres of hills and hollows.[75] The ruling is currently on appeal, scheduled to begin oral arguments on September 23, 2008. [76]

In May 2001, the Bush administration quickly enacted new regulations that defined "fill material" to include mining waste. The Clean Water Act had not explicitly defined industrial mining waste as "fill material" which left the coal industry vulnerable to citizens legally challenging the practice of MTR under the Clean Water Act.[77][9]

On May 4, 2007, the Clean Water Protection Act (H.R. 2169) was introduced in the U.S. House of Representatives and is currently co-sponsored by 141 representatives. H.R. 2169 reestablishes the original intent of the Clean Water Act by stating that the term 'fill material' means any pollutant which replaces portions of the waters of the United States with dry land or which changes the bottom elevation of a water body for any purpose and the term does not include any pollutant discharged into the water primarily to dispose of waste[78]. If passed, the bill would prevent mountaintop mining operations from using adjacent valleys and streams to dispose of the MTR mining waste overburden.

A federal judge has also ruled that using settling ponds to remove mining waste from streams violates the Clean Water Act. He also declared that the Army Corps of Engineers has no authority to issue permits allowing discharge of pollutants into such in-stream settling ponds, which are often built just below valley fills.[79]

Additionally, a September 2007 survey conducted by the Civil Society Institute found that 65% of Americans oppose the Bush Administration's proposal "to ease environmental regulations to permit wider use of 'mountaintop removal' coal mining in the U.S." The study also found that 74% of Americans are opposed to the expansion of MTR coal mining in general, and that 90% of Americans agree that more mining should be permitted only after the United States government has assessed its impacts on safety and the environment.[80]

In January 2008, the environmental advocacy group Center for Biological Diversity petitioned the United States Fish and Wildlife Service to end a policy that waives detailed federal Endangered Species Act reviews for new mining permits. The current policy states that MTR can never damage endangered species or their habitat as long as mining operators comply with federal surface mining law, despite the complexities of species and ecosystems. Since 1996, this policy has exempted many strip mines from being subject to permit-specific reviews of impact on individual endangered species.[81]

In June 2008, U.S. Senators Lamar Alexander and Energy and Natural Resources Chair Sen. Jeff Bingaman sent a letter to the Government Accountability Office requesting review of the Office of Surface Mining's (OSM) proposed revision to Stream Buffer Zone rules and the general impacts of MTR, citing fears that the practice was detrimental to both the landscape and citizens.[82]

On October 17, 2008, the Office of Surface Mining released its final Environmental Impact Statement on the modification to the Stream Buffer Zone rule. The new rule, expected to be finalized in November, will allow coal companies to legally dump massive waste piles called "valley fills" directly into streams, permanently burying them. More than 2000 miles of Appalachian streams have been buried or degraded by waste from mountaintop removal mining.[83]

Bush's Midnight Regulations

Robert F. Kennedy, Jr.'s statements on Bush's midnight rulings

In December 2008, the Bush Administration was pushing through last-minute "midnight regulations," which will be difficult for the Obama team to reverse. Included in the new laws are a rule that will make it easier for coal companies to dump debris mountaintop removal mining into valleys and streams. Another midnight regulation will allow coal-fired power plants to increase their emissions without installing new anti-pollution equipment, while another will allow power companies to build coal plants closer to national parks. The Environmental Defense Fund described the moves as a "fire sale of epic size for coal."[84]

A loophole in US law allows the President to put last-minute regulations into the Code of Federal Regulations, giving them the same force as law. Reversing Bush's midnight rules could take months or even years. The Obama Administration will have open a period of public comment on each regulation, and corporations may go to court to prevent changes.[84]

Federal appeals court in Richmond, VA reverses limits on mountaintop removal

On February 13, 2009, a federal appeals court overturned a lower court ruling that limited mountaintop removal coal mining. Delivering a win for the coal industry, a panel of the U.S. Fourth Circuit Court of Appeals ruled 2-1 to reverse U.S. District Judge Robert Chambers' decision in March 2007 that the U.S. Army Corps of Engineers had violated the Clean Water Act by issuing permits to four mountaintop removal operations. The 2007 ruling mandated full consideration of the environmental effects of mountaintop removal and slowed the issuing of new permits.[85]

The case was first filed by the Ohio Valley Environmental Coalition, Coal River Mountain Watch, and the West Virginia Highlands Conservancy against Aracoma Coal Company (a subsidiary of Massey Energy) and four other companies, as well as the U.S. Army Corps of Engineers. Environmental groups responded that the appeals court decision will lead to the destruction of 90 more mountain peaks.[85]

Court finds Army Corps of Engineers violated Clean Water Act in MTR permitting case

On November 24, 2009, U.S. District Judge Chuck Chambers ruled that the U.S. Army Corps of Engineers violated federal environmental laws by issuing permits for two mountaintop removal coal mines in West Virginia without allowing sufficient public involvement. Chambers found that the Corps violated the Clean Water Act and National Environmental Policy Act when it issued permits for CONSOL Energy's Ike Fork mines and Penn Virginia's Nellis mine. Chambers ordered the Corps to rectify the problem with the permits, while also allowing "limited" mining to continue at the sites for 60 days. The case may have implications for other surface mines already permitted and in operation. According to Oliver Bernstein of the Sierra Club, "Most of the pending permits in West Virginia may need to go back through the public process."[86]

Memo detailing West Virginia Coal Association's action items

On March 27, 2009, a memo from Chris Hamilton, Vice President of the West Virginia Coal Association, to the members of the Mountaintop Mining Coalition, became public. The memo detailed efforts underway to counteract EPA's apparent movements against mountaintop removal mining permits. "Action items" included:[87]

  • arranging an urgent meeting with the Council on Environmental Quality and EPA.
  • a multi-state congressional briefing on May 5-7 in Washington, DC, with mine visits in Kentucky, Virginia and West Virginia scheduled on May 20-21.
  • a media campaign, including a Powerpoint presentation, white paper, blog, brochure, website, and video promoting mountaintop removal mining.
  • support for Governor Manchin's SB 375, which, among other things, makes it easier for the coal industry to get around tough reclamation requirements for mountaintop removal sites.
  • support for SB 461, which grants a three-plus-year extension to the coal industry to meet water quality limits for toxic selenium discharges into waters supporting aquatic life.

The entire memo is available here.

Appalachia Restoration Act introduced in U.S. Senate

On March 25, 2009, U.S. Senators Benjamin L. Cardin (D-MD) and Lamar Alexander (R-TN) introduced Bill 696, also termed the Appalachia Restoration Act. The legislation would amend the Clean Water Act to ban the dumping of mining waste into streams, which in turn would effectively end the use of mountaintop mining. "My goal is to put a stop to one of the most destructive mining practices that has already destroyed some of America’s most beautiful and ecologically significant regions," said Senator Cardin, who is Chairman of the Water and Wildlife Subcommittee of the Committee on Environment and Public Works.[88]

State Legislative Action

Kentucky - In 2005 Kentucky became the first state in the nation to propose a bill that would end the dumping of coal mining waste into headwater streams and valleys, a procedure used in mountaintop removal mining to dispose of the large amount of rock and materials removed to expose seams of coal.[89] The bill, known as the Stream Saver Bill, has been introduced in the House and assigned to the Natural Resources and Environment committee three times but has not been allowed a hearing by the chairman of the committee, Rep Jim Gooch.[90]

North Carolina - On May 27 2008 North Carolina State Representative Pricey Harrison introduced House Bill H2709 into the North Carolina General Assembly. The bill seeks to outlaw the use of coal extracted from mountaintop removal mines from being burned in North Carolina coal fired power plants.[91]

Tennessee - In January 2008, State Senator Raymond Finney introduced a bill (SB3822/HB3348), called the Tennessee Scenic Vistas Protection Act, that would effectively end the practice of mountaintop removal coal mining in the state of Tennessee.[92]

A major provision in the legislation would ban all surface coal operations or the resulting waste within 100 feet of any stream or river unless the operation was to improve the quality of the a stream previously destroyed by mining. This would end the current practice of dumping the mining waste directly into the streams and valleys.[93] The bill also banned all surface mining above 2000 feet in elevation.[94]

In April 2008, as a final act before recessing for the year, the House Environment Subcommittee voted against allowing the bill to move forward by a vote of 3-5.[95]

West Virginia - On February 6, 2008, West Virginia State Senator Jon Hunter introduced a bill that would end the the practice of valley fills. In a press release Senator Hunter said, "I introduced Senate Bill 588 because I fervently believe that God did not intend for us to destroy the mountains, the streams, the forests and His people in order to mine coal."[96]

The bill is currently stalled in the Senate Energy and Mining Committee.[97]

Coal Activists Appeal to West Virginia Supreme Court

On March 2, 2010 environmentalists seeking to end the practice of mountaintop removal took their efforts to the state's Supreme Court in an attempt to overturn what they called "overly broad and unconstitutional" restraining orders that were designed to keep protesters away from Massey Energy operations. Attorneys Thomas Rist and Roger Forman filed an appeal and asked the court to "overturn contempt convictions resulting from the violation of those restraining orders." Massey Energy has 30 days to respond to the matter, at which point the West Virginia Supreme Court will decide on whether or not to hear the matter.

Protests against mountaintop removal have escalated as a result of non-violent direct actions taken by Climate Ground Zero, which have resulted in over 100 arrests since February 2009. Lawyers for the activists believe that the law violates freedom of speech. Similar to the state law, federal U.S. District Judge Irene Berger barred protesters from trespassing on Massey Energy property.[98]

Obama administration EPA actions on mountaintop removal

Mountain Top Removal- Kayford Mountain, West Virginia

March 2009: Obama EPA begins to crack down on mountaintop removal

On March 23, 2009, the Obama administration began making moves to block or stall mountaintop removal mining permits. The EPA issued letters meant to halt or slow two mining permits proposed by the federal Army Corps of Engineers in West Virginia and Kentucky. EPA Administrator Lisa Jackson made an official announcement on March 24, saying, "The two letters reflect EPA's considerable concern regarding the environmental impacts these projects would have on fragile habitats and streams. I have directed the agency to review other mining permits requests. EPA will use the best science and follow the letter of the law in ensuring we are protecting our environment."[99]

The decision to delay and review the two permits calls into question more than 100 pending valley fill permits in the Appalachian region.[100] In response to widespread industry dissent warning EPA not to block mining permits, as well as praise from environmentalists for the decision to deny permits, the organization issued the following clarification of its intentions:[101]

The Environmental Protection Agency is not halting, holding or placing a moratorium on any of the mining permit applications. Plain and simple. EPA has issued comments on two pending permit applications to the U.S. Army Corps of Engineers expressing serious concerns about the need to reduce the potential harmful impacts on water quality. EPA will take a close look at other permits that have been held back because of the 4th Circuit litigation. We fully anticipate that the bulk of these pending permit applications will not raise environmental concerns. In cases where a permit does raise environmental concerns, we will work expeditiously with the Army Corps of Engineers to determine how these concerns can be addressed. EPA’s submission of comments to the Corps on draft permits is a well-established procedure under the Clean Water Act to assure that environmental considerations are addressed in the permitting process.

April 2009: EPA challenges three MTR permits

In April 2009, EPA issued objections to three more mountaintop removal mining permits pending issue from the Army Corps of Engineers. The specific mines are Massey Energy's Republic No. 1 Surface Mine in Kanawha County, West Virginia; Frasure Creek Mining’s Spring Fork Surface Mine in Mingo County, West Virginia; and A&G Coal Corp.’s Ison Rock Ridge Surface Mine in Wise County, Virginia. According to the EPA letters, the three mining operations would bury about eight miles of streams.[102]

May 2009: Army Corps of Engineers suspends MTR permit for A&G Coal

On May 7, 2009, the U.S. Army Corps of Engineers suspended its approval of A&G Coal Corp.’s Ison Rock Ridge Surface Mine in Wise County, Virginia. The decision follows on the heels of a lawsuit filed by the Sierra Club and Southern Appalachian Mountain Stewards to block the permit. The Corps stated that the suspension provides officials "an opportunity to fully evaluate concerns" raised by EPA in April 2009.[103]

June 2009: Obama administration announces plans to toughen standards for MTR permits

On June 11, 2009, the Obama administration announced plans to toughen standards for mountaintop removal mining, rather than banning the practice entirely. Officials from EPA, the Army Corps of Engineers, the Interior Department, and the White House Council on Environmental Quality said they would order a more rigorous environmental and legal review of pending and future permit applications for MTR projects. The announcement did not clarify whether the new standards would result in more or fewer mining permits being approved, leaving both environmental and coal industry groups uncertain about whether to support the new policies.[104]

August 2009: Court rejects attempt to turn back Bush's midnight regulations on MTR

On August 12, 2009, U.S. District Judge Henry H. Kennedy, Jr. denied an effort by Obama's Interior Department to overturn a last-minute rule change by the Bush administration. Interior Secretary Ken Salazar had filed a motion to toss out a Bush regulation that made it easier for coal mining companies to dump debris into valley streams. Salazar's motion was opposed by the National Mining Assocation. In his decision, Judge Kennedy said that Salazar erred in trying to "repeal a rule without public notice and comment, without judicial consideration of the merits."[105] A spokesperson for the Interior said the department is examining the court's decision and is "determined to improve mining practices."[106]

September 2009: Obama administration seeks to block West Virginia MTR permit

On September 3, 2009, the EPA issued a letter to the Army Corps of Engineers calling out problems with a permit issued for a strip-mining project in Logan County, West Virginia, the largest such permit ever issued in the state. EPA found that the mine would violate the Clean Water Act, having the "potential to degrade downstream water quality, and to cause or contribute to potential excursions of West Virginia’s narrative water quality standards." EPA has asked the Corps of Engineers to suspend, revoke, or modify the permit. In response, the Corps is seeking a 30-day stay in legal proceedings over the permit, so that its experts can re-examine the project.[107] The full EPA letter is available here.

September 2009: EPA holds 79 MTR permits for review

The EPA identified 79 mountaintop removal permits issued by the Army Corps of Engineers in Kentucky, Ohio, Tennessee, and West Virginia that it said would likely affect water quality. The agency put the permits on hold to allow for further study to ensure the projects will not violate the Clean Water Act. Mary Anne Hitt of the Sierra Club described the move as "a sea change in enforcement" over the Bush administration, during which the EPA did not oppose a single permit.[108][109]

October 2009: EPA to revoke permit for West Virginia surface mine

On October 16, 2009, the EPA announced that it planned to use its authority to revoke the permit for Mingo Logan Coal's Spruce No. 1 mine, which is owned by Arch Coal. The agency said it was acting on its authority for the first time since the Clean Water Act was enacted in 1972. The project at issue would be the largest authorized mountaintop removal operation in Appalachia. In a letter to the Army Corps of Engineers, EPA Regional Administrator William Early said the action "reflects the magnitude and scale of anticipated direct, indirect, and cumulative adverse environmental impacts associated with this mountaintop removal mining operation."[110]

March 2010: EPA approves MTR permit

On March 2, 2010 the EPA announced that it had granted a Clean Water Act permit for the Hobet 45 Mine in Lincoln County, West Virginia after Hobet Mining LLC, a company owned by Patriot Coal, had agreed to additional "significant protections" against environmental impacts. The permit now must be approved by the Army Corps of Engineers.

Additionally, the EPA said it extended the agency's talks with Mingo Logan Mining Co., owned by Arch Coal, in regard to environmental and water quality concerns about its Spruce No. 1 mine in Logan County, West Virginia. Opponents of the permits, citing groundwater pollution from mountaintop removal projects stated that, “Enforceable minimum waste management requirements for dry disposal of coal ash in landfills should include siting restrictions, liners, groundwater monitoring, leachate collection, and financial assurance, closure requirements, post-closure care, and corrective action.”[111]

March 27, 2010: EPA blocks Arch Coal Mine

On March 26, 2010, it was announced that the EPA was to veto Arch Coal's Spruce No. 1 mine. The project would be the largest mountaintop removal venture in the entire Appalachia region. As of March 28, 2010 the company said it would defend the mining proposal. The public comment period is open for 90 days. The mine was opposed due to its likely environmental impact.[112]

April 1, 2010: EPA States MTR Valley Fills Might End

At the beginning of April 2010, the EPA's Lisa Jackson laid out new mountaintop removal guidelines, which may put the brakes on the practice in Appalachia and elsewhere, where valleys are filled with mining debris. Jackson stated that valley fills likely violate Clean Water Act requirements in most cases.

"You are talking about either no or very few valley fills that are going to be able to meet standards like this," said Jackson. "What the science is telling us is that it would be untrue to say you can have any more than minimal valley fill and not see irreversible damage to stream health."

Jackson said bluntly that the new guidelines were not meant to end coal mining, but the gradual tightening of regulations would change mining practices for the betterment of water quality.[113]

June 17, 2010: U.S. Army Corps of Engineers suspends expedited process for surface mining permits

On June 17, 2010, the U.S. Army Corps of Engineers suspended an expedited process for obtaining surface mining permits across much of the nation's eastern coalfields. According to the Corps, new surface coal mines in West Virginia, eastern Kentucky, Ohio, Pennsylvania, Tennessee, and Virginia will no longer be able to use the expedited process to obtain permits to bury streams with excess waste. Instead, surface mines in those states will need individual Clean Water Act permits, which typically involve greater scrutiny and public input. The decision does not affect other major coal producing areas in the Midwest and Wyoming. The corps decided to suspend the process in the six states because information gathered in recent years shows mountaintop mining can harm aquatic life, according to Corps official Meg Gaffney-Smith. The expedited process had been used heavily in the region, where surface mines produce roughly 12 percent of the nation's coal. About 80 percent of the 1,500 permits issued through the process since 1997 had been for mines in the Appalachian region of the six states.[114]

June 29, 2010: EPA’s first decision under new MTR guidelines is to approve coal permit

In late June 2010, the U.S. Environmental Protection Agency gave the Army Corps of Engineers a green light for the Pine Creek Mine permit, a mountaintop removal (MTR) mining site located in Logan County, W.Va. The permit was the first decision the EPA has issued under its new mountaintop mining guidelines.

Environmentalists argued that the new MTR guidelines were understood to provide greater protection for headwater streams by curbing the practice of dumping waste in neighboring valleys to create what is known as valley fills. However, the Pine Creek permit is the first test of these guidelines, and green lighted three new valley fills (each over 40 acres large).

The Center for Biological Diversity contended:

Pollution from mountaintop removal mining has been found to cause deformities and reproductive failure in downstream wildlife and has been associated with cancer clusters in human communities exposed to high levels of coal-mining activity. Human health impacts result from contact with polluted water and from exposure to airborne toxins and dust. Mountaintop removal also causes widespread damage of private property. Earlier this month a state of emergency was declared in southern West Virginia after flooding ravaged the area; a recent study has found that mountaintop removal and valley fill operations lead to increased risk of flooding.[115]

Author Jeff Biggers also chimed in on the permit, questioning the Obama administration's position on MTR:

I’m not sure if the EPA is addled, or downright shameless, but on the heels of meeting with besieged Appalachian coalfield residents and less than three months since its ballyhooed new guidance rules to halt reckless mountaintop removal operations, President Obama’s Environmental Protection Agency has once again gone back on its word and green-lighted a dangerous mountaintop removal permit in a hair-brained pander to Big Coal that will knowingly destroy miles of critical headwater streams.[116]

The Pine Creek permit now needs to be approved by the Army Corps of Engineers.

July 2010: Coal industry sues EPA, Army Corps

On July 20, 2010, coal industry lawyers for the National Mining Association sued the U.S. Environmental Protection Agency and the Army Corps of Engineers to try to slow down efforts to regulate mountaintop removal mining, filing suit in federal court in Washington, D.C. over the EPA's more detailed review of mining permit applications for valley fills, and a new set of recommended water quality guidelines for surface coal mining in Appalachia. In the 42-page complaint, the association alleges EPA's permit reviews were an effort to "rob" other agencies of their regulatory role and charges that EPA Administrator Lisa Jackson ignored requirements for public involvement when she issued the new water pollution guidelines. The mining association also alleges this process "adds significant additional time to the corps regulatory review" and is "dramatically altering timelines" for companies to receive new mining permits.[117]

EPA made its guidance review effective on an interim basis, and is conducting an eight-month public comment period and subjecting the MTR scientific reports the guidance is based upon to peer review. In its suit, the mining association said the guidance constitutes a rulemaking that should have gone through a public comment before it was put into effect. The suit asks for a court order to block the more detailed EPA permit reviews and the agency's conductivity guidance.[117]

Sep. 2010: Independent Science Advisory Board Supports EPA Science on MTR Impacts

On September 28, 2010, the U.S. Environmental Protection Agency’s (EPA) independent Science Advisory Board (SAB) released their first draft review of EPA’s research into the water quality impacts of valley fills associated with mountaintop mining. In their draft review, the SAB supported EPA’s scientific research and agreed with EPA’s conclusion that valley fills are associated with increased levels of conductivity (a measure of water pollution for mining practices) in downstream waters, and that these increased levels of conductivity threaten stream life in surface waters.[118]

The SAB reviewed EPA’s draft report “A Field-Based Aquatic Life Benchmark for Conductivity in Central Appalachian Streams,” which uses field data to derive an aquatic life benchmark for conductivity. The benchmark is intended to protect 95 percent of aquatic species in streams in the Appalachian region influenced by mountaintop mining and valley fills. Based on that science, EPA released guidance in April designed to minimize irreversible water quality impacts caused by mountaintop mining. Following the completion of the external peer review and review of public comments, the report will be revised and published as a final report.[118]

A growing body of scientific literature, including previous and new studies performed by EPA, show significant damage to local streams that are polluted with the mining runoff from mountaintop removal. To protect water quality, EPA has identified a range of conductivity (a measure of the level of salt in the water) of 300 to 500 microSiemens per centimeter that is generally consistent with protecting life in Appalachian streams. The maximum benchmark conductivity of 500 microSiemens per centimeter is a measure of salinity that is roughly five times above normal levels.[118]

EPA’s Assistant Administrator for Water Pete Silva said: “This independent review affirms that EPA is relying on sound analysis and letting science and only science guide our actions to protect human health and the environment. We will continue to follow the science and solicit input from all stakeholders as we safeguard water quality and protect the American people.”[118]

October 2010: West Virginia sues EPA over MTR permits

In October 2010 it was announced that West Virginia was set to sue the EPA over delayed mountaintop removal coal mine permits. “In 2009, the U.S. Environmental Protection Agency began interfering with the surface coal mine permitting process in West Virginia,” said Gov. Joe Manchin in a statement. “Through a series of questionable and unlawful actions, the U.S. EPA has implemented policies and procedures that have delayed the permitting process and halted the issuance of new mine permits.”

Gov. Manchin alleged that no specific law or government regulation has kept the permits from passing, only a political policy agenda specifically coming from the executive branch of government. The governor argued that certain federal government entities including the EPA, the U.S. Army Corps of Engineers, and the Department of the Interior delayed the issuance of 23 pending coal mining permits in West Virginia with only 2 being approved since 2009.[119]

October 2011: Judge rules EPA overstepped MTR permit authority

On October 6, 2011, U.S. District Judge Reggie B. Walton ruled that the federal Environmental Protection Agency overstepped its authority when it began a more intense review of individual Clean Water Act permits normally handled by the Army Corps of Engineers. Still to be decided in the case is the challenge to EPA’s new water quality guidelines for coal mining operations in Appalachia. Arguments on that portion of the case have been delayed until June 2012.[120]

2012 rulings

In January 2012, U.S. District Judge Reggie B. Walton dismissed the EPA's plans to work with other agencies to more closely scrutinize certain mining-related water pollution permits for valley fill waste piles. In March 2012, U.S. District Judge Amy Berman Jackson, also in the District of Columbia, overturned the EPA's veto of Spruce 1 Mine, the largest mountaintop removal permit in West Virginia history. The EPA is appealing Jackson's ruling. In July 2012, U.S. District Judge Reggie B. Walton ruled that the U.S. Environmental Protection Agency overstepped its authority under federal water protection and strip mining laws when it issued the water quality guidance, and also found that EPA Administrator Lisa P. Jackson "infringed on the authority" of state regulators to govern their own pollution permit and water quality standard programs. The guidance in question aimed for tougher permit application reviews, including more detailed studies of whether mining impacts can be avoided or reduced, new testing procedures for potentially toxic mining discharges, and limits on increases in pollution-related electrical conductivity.[121]

MTR Lobby

On February 16, 2010 it was announced that the West Virginia Coal Association spoke to a House committee that the ongoing "enhanced review" of 20 mountain top removal permits threatens plans to open or expand mines that "could extract 19 million tons of coal a year." The EPA was no represented at the special committee meeting.

Association President Bill Raney told the committee that the affected sites together hold 132 million tons of coal reserves.

"About 1,300 employees could be subject to some kind of action if these permits are not issued," Raney told the House Committee on Coal Mining Permits. "It's hanging up employment, it's hanging up production, it's hanging up revenues coming to the state of West Virginia. We can't get answers from the federal government."[122]

Criticism

Health effects of mountaintop removal

Critics contend that MTR is a destructive and unsustainable practice that benefits a small number of corporations at the expense of local communities and the environment. Opponents to the practice have also criticized MTR for the damage done to the environment by massive transport trucks, loss of potable drinking water[123], increased risk of flooding [124] , health effects of breathing coal and blasting dust and drinking water tainted by coal slurry [125] [126] , and the environmental damage done by the burning of coal for power[127].

Advocates of MTR argue that if the areas are reclaimed as mandated by law, the area provides flat land suitable for many uses in a region where flat land is at a premium. They also maintain that the new growth on reclaimed mountaintop-mined areas is better suited to support populations of game animals.[128]

Blasting at MTR sites also expels coal dust and fly-rock into the air, which can disturb or settle onto private property nearby. This dust contains sulfur compounds, which corrodes structures and is a health hazard. [129]

In 2007, a feature documentary titled "Mountain Top Removal" was completed by Haw River Films. The film features Mountain Justice Summer activists, coal field residents, and coal industry officials. Included in the film are US President George W. Bush and West Virginia Governor Joe Manchin, among others. The acclaimed film received the Reel Current Award at the 2008 Nashville Film Festival, which was awarded by former vice-president Al Gore.[130]

A book titled Coal River by Michael Shnayerson, released in January 2008, accuses the industry of circumventing public hearings by dividing large MTR projects into smaller sections. Under the practice, mining officials can utilize a legal loophole and obtain permits (Nationwide Permit 21) that undergo a more relaxed review than those required for large projects.[131] Since Nationwide Permit 21 is intended for small projects that "cause minimal adverse environmental effects," citizens typically only discover the large-scale mining after mountaintop removal has already begun. The Clean Water Act prohibits this practice, but the Army Corps of Engineers has continued to allow it.[132] The Corps has said that its allowance of the procedure "strengthens protections for mining related permits."

Sludge ponds

Marsh Fork Elementary (bottom center of photo) sits directly below a 2.8 billion gallon toxic slurry impoundment and 150 feet from a coal processing plant. Directly above the slurry impoundment is an active mountaintop removal site. Raleigh County, West Virginia. Photo: Giles Ashford / Flight provided by: Southwings (www.southwings.org).

As with other methods of coal mining, processing of the coal mined generates waste slurry (or coal sludge), which is usually stored in large sludge ponds impounded by an on-site dam. Many coal slurry impoundments in West Virginia exceed 500 million gallons in volume, but can be larger than 7 billion gallons.[133] Such impoundments can be hundreds of feet high and sometimes have close proximity to schools or private residences.[134]

The most controversial sludge dam at present sits 400 yards (400 m) above Marsh Fork Elementary School. In May 2005, 16 people were arrested at Governor Manchin's office for protesting the his refusal to fund the relocation of the school. The leaking sludge pond is permitted to hold 2.8 billion gallons of coal sludge and is 21 times larger than the pond that killed 125 people in the Buffalo Creek Flood in 1972. [135]

Kentucky's Martin County Sludge Spill occurred in October 2000, when a coal sludge impoundment broke through into an underground mine below, propelling 306 million gallons of sludge down two tributaries of the Tug Fork River. The spill polluted hundreds of miles of waterways, contaminated the water supply for over 27,000 residents, and killed all aquatic life in Coldwater Fork and Wolf Creek.

Biodiversity

An EPA environmental impact statement finds that streams near valley fills from mountaintop removal contain high levels of minerals in the water and decreased aquatic biodiversity.[3] The statement also estimates that 724 miles (1,165 km) of Appalachian streams were buried by valley fills between 1985 to 2001.[3]

Photo of a reclaimed mountaintop removal site, Boone County, West Virginia. Photo: Vivian Stockman (www.ohvec.org)

Although U.S. mountaintop removal sites by law must be reclaimed after mining is complete, reclamation has traditionally focused on stabilizing rock formations and controlling for erosion rather than on reforestation of the affected area. [136] Fast-growing, non-native grasses, planted to quickly provide vegetation on a site, compete with tree seedlings, and trees have difficulty establishing root systems in compacted backfill.[3] Consequently, biodiversity suffers in a region of the United States with numerous endemic species.[137] Erosion also increases, which can intensify flooding. In the Eastern United States, the Appalachian Regional Reforestation Initiative works to promote the use of trees in mining reclamation.[138]

Mountaintop removal mining practices are also a threat to endangered species. According to the Endangered Species Act, the U.S. Fish and Wildlife Service must conduct a formal review of any federally-authorized action that could potentially harm endangered or threatened species. However, coal mining projects are not subject to this review process. Mining companies instead must follow the environmental provisions of the Surface Mining Law, which requires more informal consultations with biologists to determine ways to minimize the potential impacts to species. Environmentalists argue that without a formal review process, there is no way to ensure compliance with the Endangered Species Act. In 2008, the Southern Environmental Law Center sued on behalf of the National Parks Conservation Association over the lack of Endangered Species Act enforcement. The complaint is currently under review by the Office of Surface Mining and Reclamation.[139]

Failed Coal Mine Reclamation

Coal mine reclamation site in Blair, WV. Photo courtesy of ilovemountains.org.

Studies by Appalachian Voices and the Natural Resources Defense Council have found that, of the 410 reclaimed mountaintop removal mine sites surveyed, 366 (89.3%) had no form of verifiable post-mining development, excluding forestry and pasture. Such coal mine reclamation - the rehabilitation of land after coal mining operations have stopped - is a requirement of the Surface Mining Control and Reclamation Act (SMCRA) of 1977.[140]

Instead, the reclamation projects included: industrial parks; oil and gas fields, golf courses, airports, municipal parks, a hospital, an ATV training center, and a county fairground. Commercial agriculture or farming was identified on nine sites, sometimes in conjunction with other land uses such as residential development. (The post-mining land use of 18 other sites remained uncertain.)

Increased poverty and health problems for MTR communities

Coal River Wind Project www.coalriverwind.org

In a 2010 report looking at the relationship between poverty, education, health, and coal in Appalachia, Education and Jobs, Jobs and Education: A proposal for funding economic redevelopment in Central Appalachia, author Dr. Michael Hendryx found that counties in West Virginia and Kentucky that engage in coal mining have higher poverty rates than those that do not, based on data from the 2000 US Census: 21.3% in coal mining areas, versus 14.3% in non-coal mining areas of the states, and 13.5% in the rest of the Appalachian region. The differences are statistically significant. In addition, the coal mining communities also have higher levels of unemployment, and lower levels of income and high school and college education. The author also notes that the number of jobs the coal mining industry provides for WV and KY is declining: in 1985, the number of coal mining jobs in eastern Kentucky and West Virginia was 67,757, but by 2007 the figure had declined to 34,155, due to increases in mechanization and mountaintop removal mining, which requires fewer workers.[141]

Hendryx also ties the poverty rate to significant differences in age-adjusted death rates per 100,000 people based on Centers for Disease Control and Prevention (CDC) data for the years 1997-2005: 1,067 in coal mining areas of WV and KY, versus 976 in non-coal mining areas of the states, and 948 in the rest of Appalachia.[141] Of the 435 Congressional districts in the U.S., the ones with the most mountaintop removal also have the worst health: Hal Rogers’ district in KY-05 has the most mountaintop removal and the largest rate of age-related mortality deaths. Nick Rahall’s district in WV-03 has the second most mountaintop removal and is the second highest rate, and Rick Boucher’s district in VA-09 has the third most mountaintop removal and the third highest rate.[142] To address these disparities, the author recommends that coal severance taxes go directly to coal mining communities for jobs and education programs.[141]

A 2011 study in the May issue of the American Journal of Public Health by the West Virginia University School of Medicine noted disparities in health as a result of coal mining in Appalachian communities, especially concentrated in mountaintop mining areas. Those areas have the greatest reductions in health-related quality of life even when compared with counties with other forms of coal mining. The measure of health-related quality of life used in this study is a four question population-based measure developed by the Centers of Disease Control and Prevention. Using the Behavioral Risk Factor Surveillance System, a telephone-based, random survey, residents in four central Appalachian states – Kentucky, Tennessee, Virginia and West Virginia – were asked questions about how many poor mental and physical health days they experienced in the previous 30 days.[143]

Co-author of the study Keith Zullig, Ph.D. said: “Self-rated health and health-related quality of life were significantly reduced among residents of mountaintop mining communities in the unadjusted and adjusted models. Mountaintop mining county residents experience, on average, 18 more unhealthy days per year than do the other populations. That’s approximately 1,404 days, or almost four years, of an average American lifetime. When mountaintop mining and other coal mining counties were not separated in a previous study, there were 462 reduced health-related quality of life days across an average American life.”[143]

Increased cancer rates

Among the 1.2 million American citizens living in mountaintop removal mining counties in central Appalachia, an additional 60,000 cases of cancer are directly linked to mountaintop removal, according to the study, "Self-Reported Cancer Rates in Two Rural Areas of West Virginia with and Without Mountaintop Coal Mining" published in July 2011 in the Journal of Community Health: The Publication for Health Promotion and Disease Prevention. Led by West Virginia University researcher Dr. Michael Hendryx, the study was a door to door survey of 769 adults in Boone County, West Virginia in the spring of 2011, which gathered person-level health data from communities directly impacted by mountaintop mining, and compared it to communities without mining. The researchers found that the cancer rate was twice as high in a community exposed to mountaintop removal mining compared to a non-mining control community. The correlation held after controlling for age, sex, smoking, occupational exposure, and family cancer history.

Increased birth defects

In a 2011 Environmental Research journal study, "The association between mountaintop mining and birth defects among live births in central Appalachia, 1996–2003" investigators reported that children born in counties home to mountaintop coal mines had a 26% higher risk of suffering birth defects, compared to ones born in non-mining regions. (Nationwide, about 1 in 33 babies suffer a birth defect, the leading cause of infant deaths.)

A number of studies had found health risks associated with coal mining regions including low birth weight. Lead researcher Melissa Ahern, a health economist at Washington State University, and colleagues decided to look for health effects on infants across four states (West Virginia, Kentucky, Tennessee and Virginia) where mountaintop removal mining occurs. Looking at the 1,889,071 births in those states from 1996 to 2003, the researchers first found birth defects were higher in six of seven categories (including heart, lung and gastrointestinal birth defects) in mountaintop mining counties compared to elsewhere. According to the study: "Rates for any anomaly were approximately 235 per 10,000 live births in the mountaintop mining area versus 144 per 10,000 live births in the non-mining area."

Since poverty has also been linked to birth defects, the researchers controlled for social factors, such as smoking, drinking, mother's education, race and other poverty-related factors, and the team found the effect was still statistically significant, leading to the 26% higher risk of birth defects in the mountaintop mining counties. According to Ahern: "Circulatory and respiratory effects really stood out." The study stated that birth defect rate seemed to increase over time and in regions with more mountaintop removal.[144]

The report INSTITUTE INDEX: Appalachia’s deepening human rights crisis by the Institute for Southern Studies laid out some of the numbers in the Environmental Research study:

  • Of every 100,000 babies born, number who suffer from birth defects in areas of Appalachia: 235
  • In non-mining areas: 144
  • Percent higher risk of having a baby with a birth defect for mothers who smoked during pregnancy compared to non-smoking mothers: 17
  • Percent higher risk of having a baby with a birth defect for mothers living in mountaintop removal areas compared to mothers living in non-mining areas: 42
  • Percent that a mother’s smoking increases the risk that her baby will be born with defects of the circulatory or respiratory system: 17
  • Percent that a mother’s living in a mountaintop removal mining area increases the risk of such defects: 181

Mining law firms blames birth defects on residents

After the 2011 Environmental Research journal study, the firm Crowell & Moring, which represents the National Mining Association, accused the study's authors of using cherry-picked and misleading data, and went on to write in a statement that "The study failed to account for consanquinity [sic], one of the most prominent sources of birth defects." The firm then advertised its "services" to coal companies looking to "counter unfounded claims of injury or disease" from potential lawsuits sparked by the study.

The statement, which had been on the firm's website for more than a week, was quickly removed on July 11, 2011, after Charleston Gazette blogger Ken Ward Jr. pointed out its insinuation that inbreeding, not mountaintop mining, were to blame for spikes in the rate of birth defects, which the firm also said didn't exist in the first place.[145]

Science study: MTR permits should not be granted

In January 2010, Science released an 11-author study, “Mountaintop Mining Consequences” on mountaintop mining with valley fills (MTM/VF), in an analysis of “current peer-reviewed studies and of new water-quality data from WV [West Virigina] streams.”

The study revealed “serious environmental impacts that mitigation practices cannot successfully address” and concluded: "Considering environmental impacts of MTM/VF, in combination with evidence that the health of people living in surface-mining regions of the central Appalachians is compromised by mining activities, we conclude that MTM/VF permits should not be granted unless new methods can be subjected to rigorous peer review and shown to remedy these problems. Regulators should no longer ignore rigorous science."

The study cited problems with:[146]

  • pervasive and long lasting impacts with no evidence that any mitigation practices successfully reverse the damage caused;
  • valley fills contain a variety of ions and trace metals unearthed during coal mining which are toxic or debilitating for many organisms, which explains why biodiversity is reduced below valley fills;
  • burial of headwater streams by valley fills causes permanent loss of ecosystems that play critical roles in ecological processes such as nutrient cycling and production of organic matter for downstream food webs;
  • in mined sites, removal of vegetation, alterations in topography, loss of topsoil, and soil compaction from use of heavy machinery reduce infiltration capacity and promote runoff by overland flow, leading to greater storm runoff and increased downstream flooding;
  • below valley fills in the central Appalachians, streams are characterized by increases in pH, electrical conductivity, and total dissolved solids due to elevated concentrations of sulfate (SO4), calcium, magnesium, and bicarbonate ions;
  • a survey of 78 MTM/VF streams found that 73 had selenium water concentrations greater than the 2.0 µg/liter threshold for toxic bioaccumulation
  • even after mine-site reclamation, groundwater samples from domestic supply wells have higher levels of mine-derived chemical constituents than well water from unmined areas; and
  • many reclaimed areas show little or no regrowth of woody vegetation and minimal carbon (C) storage even after 15 years.

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Related SourceWatch articles

External links

Visualizing the Environmental Impacts of Mountaintop Removal,"] EcoWatch, August 2012. Wikipedia also has an article on Mountaintop removal. This article may use content from the Wikipedia article under the terms of the GFDL.