Mountaintop Removal

By Sandi Zellmer

Background

The Issue Can coal mining in mountainous areas be conducted in a manner more protective of human communities and the environment than the current practice of removing entire mountaintops and dumping waste into valleys and streams below? How should federal and state regulators work together to address mountaintop removal? How and when should members of affected communities be involved in the decisionmaking processes?

The Appalachian Mountains stretch nearly 1600 miles from Quebec to Georgia. Coal mining has been the driving force of the region’s economy since the 1880’s. To date, more than 12 billion tons of coal have been extracted, primarily from West Virginia, Kentucky, North Carolina, Ohio, and Virginia. In 2000 alone, mines in this area produced over one billion tons of coal -- more than half of the United States' total production. Demand for Appalachian coal has increased since the early 1990’s due to its high BTU and low sulfur content. Low sulfur coal helps power plants and other coal-burning industries satisfy federal restrictions on acid rain emissions.

In Appalachia, coal generally is found in narrow seams separated by dirt and rock called "overburden" or spoil. In the past, miners removed it by drilling passageways into the mountainsides. Although this technique is both dangerous and labor-intensive, it requires little by way of complex machinery.

By the mid-1990s, a more efficient method of surface mining, called "mountaintop removal,” became prevalent throughout Appalachia. This technique involves placing explosives at various points around a mountaintop and blasting off 600 feet or more of earth. Miners then remove the overburden using draglines, which are gigantic machines, sometimes 20 stories tall, that can scoop 100 tons of loose overburden at a time, allowing extraction of the exposed coal seams. From 1996 to 1998, the West Virginia Department of Environmental Protection alone approved permits for 38 mountaintop removal mines, impacting over 27,000 acres.

Mountaintop removal is considered to be the most profitable mining technique available. In spite of the economic benefits, mountaintop removal exacts a heavy toll in both environmental and social costs, literally flattening mountains and transforming densely forested lands into treeless terraces and plateaus. The displaced overburden becomes “valley fill,” which is pushed into valleys that typically contain headwater streams. This movement of soil has permanently filled thousands of stream miles, producing a dramatic effect on both water quantity and water quality as well as more severe and more frequent flooding in the region.

Residents are forced to live with flash floods, polluted drinking water, thick dust, and the never-ending noise created by explosions at the mining operations, many of which operate twenty-four hours a day, seven days a week.

Although the mining industry has extracted coal worth billions of dollars from the mountains of Appalachia, much of the wealth has gone out-of-state, leaving little for local communities. Mountaintop mining requires fewer employees than previously employed methods. Fewer jobs mean the lack of a well-planned infrastructure for affected communities and an impoverished educational system. For example, in Mingo County, West Virginia, the heart of the "Billion Dollar Coalfields," the median household income is $12,000 less than the national average. Residents are surrounded by empty homes and businesses and a decimated infrastructure.

What People are Fighting About

The nation’s attention became focused on problems in the coalfields in 1972, when a huge waste impoundment at Buffalo Creek, West Virginia collapsed. Its floodwaters destroyed 500 homes, killed 125 people and left 4,000 homeless. With the ensuing media attention and public pressure, Congress could no longer ignore the effects of coal mining and the enormous costs it imposed on coalfield communities. In 1977, Congress passed the Surface Mining Control and Reclamation Act (SMCRA) to counter the impacts of unregulated mining. Although SMCRA recognized mountaintop removal as a legitimate mining technique, it required stringent regulation to protect valley streams, viable local economies, and reclamation of mined areas to their approximate original contour. SMCRA was intended to promote social and environmental justice in coalfield communities through a strict regulatory program that would hold coal companies accountable for their actions. Congress created the Office of Surface Mining Reclamation and Enforcement (OSM) in the Department of the Interior to oversee implementation of SMCRA. It gave OSM authority to issue regulations, approve or disapprove state permit programs, oversee state administration, and provide federal programs for states that do not take over administration. 30 U.S.C. § 1211. Provisions for federal oversight and for citizen participation in the administration of the Act were intended to neutralize states' natural tendency to prioritize economic production and influential coal companies over environmental protection. In addition to regulation under SMCRA, the effects of mountaintop removal are potentially subject to regulation under a variety of state and federal laws. Mountaintop removal is also regulated at the federal level by the Clean Water Act (CWA), which applies to a broad range of activities that affect water quality, including dumping overburden into mountain streams. The Act is implemented through two permitting programs: the National Pollutant Discharge Elimination System (NPDES) authorized by Section 402, administered by the U.S. Environmental Protection Agency (EPA), and the “dredge and fill” program of Section 404, administered by the Corps of Engineers. Many states have assumed authority to implement CWA § 402 and SMCRA, but only two have assumed authority under CWA § 404.

EPA’s NPDES program governs pollutants dumped into waters of the United States, including waste by-products and sediments, prohibiting such discharges unless they are covered by a government permit. The Corps’ 404 program governs dredged materials and materials used to fill the nation’s waters and wetlands to convert them to dry, developable land, and also forbids such activities without a government permit Taken together, the CWA and SMCRA include provisions that were clearly written to protect communities affected by mountaintop removal. But neither of these statutes is being enforced vigorously enough to achieve their objectives. Although both programs require individual dischargers to obtain permits, activities regulated under Section 404 (discharges of dredged and fill material) are frequently covered by streamlined, “general” permits that are less rigorous than a facility-specific permit. In theory, the Corps is authorized to issue nationwide (general) permits (NWPs) under Section 404 only for activities that "will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." Despite this limited language, the Corps tends to employ the general permit option far more frequently than the EPA.

In the last several years, the adequacy of state enforcement of SMCRA and state law, and of the Corps of Engineers’ implementation of section 404 were challenged in two highly publicized lawsuits involving disposal of mining waste. In both cases, the district court issued an environmental protective opinion only to be overturned by the conservative Court of Appeals for the Fourth Circuit.

In the first, Patricia Bragg, a resident of a former coal camp at Pigeon Creek near Blair Mountain in Mingo County, West Virginia, alleged that state agencies had failed to enforce environmental laws restricting mountaintop removal. Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D.W. Va. 1999), rev'd sub nom. Bragg v. W. Va. Coal Ass'n, 248 F.3d 275 (4th Cir. 2001). Language in state regulations restricted state authority to approve mining operations within 100 feet of a perennial stream unless the West Virginia Department of Environmental Protection (DEP) found no adverse effects on water flow, gradient, quantity, quality, fish migration, or related environmental values would ensue. The case was heard by Chief Judge Charles Haden, an appointee of Republican President Gerald Ford, in the Southern District of West Virginia. Bragg alleged that DEPhad engaged in a pattern and practice of approving buffer zone variances that unlawfully allowed the burial of substantial parts of intermittent and perennial streams. Judge Haden ruled that valley fills clearly violated this standard. The Fourth Circuit Court of Appeals reversed without ruling on the merits of the complaint, concluding West Virginia could not be prosecuted under the doctrine of sovereign immunity.

The second case involved the Army Corps’ misguided practice of granting general permits covering mountaintop mining, despite provisions in Section 404 limiting general permits to activities that have only “minimal” impact on the environment. The case involved the Martin County Coal Corporation’s mountaintop removal project in Kentucky, which the Corps had sanctioned under a CWA § 404 nationwide permit (NWP-21). The project was designed to create 27 valley fills and fill over six miles of streams. A non-profit group, Kentuckians for the Commonwealth, challenged the Corps’ practice of permitting valley fills, alleging that the practice violated the Corps’ own CWA regulation that clearly and explicitly banned issuance of a Section 404 permit to allow the dumping of material primarily to dispose of waste. Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 204 F.Supp.2d 27 (S.D.W.Va. 2002), rev’d, 317 F.3d 425 (4th Cir. 2003). Disposal of waste into waters of the United States has traditionally been permitted only under Section 402 of the CWA, a provision that imposes stringent technology-based limitations on dischargers. In 2002, while the case was pending, the Bush Administration issued a new rule that allowed the dumping of waste rock and dirt as “fill” under Section 404, in effect sanctioning the project. Once again, Judge Haden found for plaintiffs, ruling that the new rule effected so fundamental a change that it could only be accomplished by amendment of the statute. Once again, the Fourth Circuit reversed Judge Haden, upholding the 2002 rule.

CPR's Perspective

The pair of lawsuits described above reveals two fundamental weaknesses in the regulatory framework governing mountaintop removal. By according sovereign immunity to states, the Bragg decision seriously undermined the important federal policy of ensuring protection for all citizens notwithstanding individual states’ demonstrated tendency to prioritize economic activity over environmental, health, and safety protection. Because regulatory authority under SMCRA is delegated to many states in the Appalachian region, residents in a region dominated by a single industrial activity are left with no effective recourse for violations of federal law. The second decision under Section 404, upholding the Bush Administration’s new interpretation of fill placement and abandoning the prior rule’s exclusion of waste disposal, is likely to underprotect health, safety, and environmental values substantively and seriously impair the opportunity for public participation in the decisionmaking process. EPA and the Corps must protect valley streams and coalfield communities by requiring individual permits from coal companies before mountaintop removal occurs, and OSM must exercise strong oversight over states that fail to implement SMCRA’s requirements. The need and justification for targeted enforcement in these poor communicates is also discussed in CPR’s Perspective on Environmental Justice. The lead role for setting and enforcing uniform standards through permitting requirements rests firmly with the federal government. Further, citizens must be allowed a full and complete opportunity to participate in the decisionmaking on mountaintop mining permits in both federal and state processes. See CPR Perspective on Environmental Enforcement; CPR Perspective on Devolution.

If mountaintop removal continues at its present pace and form, Appalachian residents will continue to suffer from unemployment, flash floods, polluted drinking water, plumes of dust particles, and constant noise, day and night, as well as obliteration of the ecological treasures of Appalachia. Individual permitting processes for mountaintop removal, along with strict enforcement by federal and state governments and private citizens, are necessary to prevent social and environmental obliteration.

The Administration’s extension of CWA § 404 permitting for waste disposal will have effects well beyond Appalachia and mountaintop removal operations. For 25 years, the Corps asserted jurisdiction only over fill materials for development purposes, leaving the regulation of waste to the EPA under Section 402 and the NPDES program. Since 2002, however, the Corps has issued § 404 permits for an array of activities that result in the discharge of wastes into the nation’s waterways. For example, a gold mining company received a Corps permit to discharge 4.5 million tons of chemically processed tailings through a three-mile long pipeline from its gold mine into Lower Slate Lake in the Tongass National Forest. This expanded use of § 404 avoids the application of the stringent technology-based standards of § 402, and could lead to the additional use of NWPs that circumvent individual, in-depth analysis and public participation. CPR rejects this extension of §404 jurisdiction and the concomitant reduction of jurisdiction under §402 of the CWA, as well as the Administration’s position that these tremendously destructive activities entail only “minimal adverse effects” and can therefore be permitted by NWP.

Further Reading:

Patrick C. McGinley, From Pick and Shovel to Mountaintop Removal: Environmental Injustice in the Appalachian Coalfields, 34 Envtl. L. 21 (2004)

Robert E. Beck, Water and Coal Mining In Appalachia: Applying the Surface Mining Control and Reclamation Act of 1977 and the Clean Water Act, 106 W.Va. L. Rev. 629 (2004)

Mindy Persofsky, Who is Protecting Our Nation's Valleys and Streams From the Grave Effects of Mountaintop Mining? Casenote: Kentuckians For The Commonwealth, Inc. v. Rivenburgh, 22 Temp. Envtl. L. & Tech. J. 219 (2004)

Paul A. Duffy, How Filled was my Valley: Continuing the Debate on Disposal Impacts, 17-WTR Nat. Resources & Env't 143 (2003)