How does the law treat Mountaintop Removal? Laws at the state and federal level regulate mountaintop removal coal mining and its environmental impacts, require varying levels of public participation, and apply varying amounts of scrutiny in the permitting process. This section will explore the governmental institutions that exert influence over mountaintop removal coal mining, the laws that regulate it, and potential changes in the law. There is great dispute as to whether or not regulations and their enforcement sufficiently safe-guard the health, safety, and well-being of communities living near mountaintop removal sites and the surrounding environment, so both law as written and law as applied will be explored in this section.
National Environmental Protection Act
The National Environmental Protection Act was passed in 1970 in order to monitor the environmental impact of federal agency actions and decisions. The act created a Council on Environmental Policy, required environmental impact statements and a process to solicit public input to include environmental concerns in federal agency decision making.
In the case of mountaintop removal and valley fill permitting, coal companies prepare and submit an Environmental Impact Statements
(EIS) for each permit. In theory, these statements assess the potential impact of mining on the environment. The Army Corps of Engineers is empowered to issue Finding of no Significant Impact (FONSI) documents which supersede any concerns that may be present in the EIS by explaining why the Corps has concluded that there are no significant
environmental impacts resulting from the granting of a permit. In the past, this power has been used to streamline the permitting process, despite the obvious impacts of mountaintop removal mining.
Instances exist where permits were granted despite inadequate EIS statements, and then challenged in court. For example, as part of a settlement agreement from the Bragg vs Robertson (Civ. No. 2:98-0636 (S.D. W.V.)
the EPA, the Corps, the U.S. Interior Department's Fish & Wildlife Service and Office of Surface Mining, and the West Virginia Department of Environmental Protection (DEP), prepared an environmental impact statement (final EIS
) looking at the impacts of mountaintop mining and valley fills
More information is available in the Citizen's Guide to NEPA.
Clean Water Act
Congress passed the Clean Water Act (CWA) in 1972 with the intention of resolving the crisis of America's polluted waterways and wetlands. The CWA combines regulatory and non-regulatory tools in attempting to rid current water systems of pollutants, while attempting to stem the development of new polluted waterways and wetlands. In order to safeguard against the dumping of waste and pollutants into waterways, the Act forbids all dumping (except for specific agricultural uses) that is not approved by the Army Corps of Engineers.
Surface mines are required to obtain a National Pollutant Discharge Elimination System (NPDES) permit, which is regulated under the CWA. In West Virginia, the DEP has primacy of enforcement of the NPDES permits with EPA acting as the federal oversight body. These permits cover all pollutants discharged off the site and into the waters of the United States, restricting effluent limits and requiring the site operator to explain in the mining plan how it will meet those limits and treat what's running off the site, among other requirements.
Valley Fill, or 404, Permits
If a mining plan calls for valley fills, a 404 permit must be obtained, which is an exemption to Subsection 404 of the CWA which allows the Corps to issue variances to fill in an intermittent or perennial stream. EPA follows the United States Geological Survey's definitions for streams: an intermittent stream holds water during wet portions of the year and a perennial stream holds water throughout the year.
The Corps does not have authority over water quality, that's the jurisdiction of the EPA who oversees this permit. However, since anything that interferes with the flow of the water of the United States is regulated by the Corps, the Corps administers valley fills. This is the only part of surface mine permitting where the state does not have primacy of enforcement.
"The thing that's ironic here is that the fill rule was originally developed for developers seeking to build, and this was intended for very small projects, primarily for filling in wetlands for building things like subdivisions and shopping malls," Sludge Safety Project staffer Mathew Louis-Rosenberg said. "So, the division that handles these permits is the Division of Wetlands. Within that, the standards that are developed, that are currently used to determine the environmental impact of a fill, were developed for wetland ecosystems.
"We can't allow them to continue to keep issuing permits. Look at what they're using to evaluate them. It's an ecosystem that bears no resemblance to what we're evaluating." The people who authored the guidelines testified to Joe Lovett, a West Virginia lawyer who's only tried cases aimed at ending mountaintop removal, that the methodology they developed was not appropriate for this ecosystem. "The people who literally wrote the book they use to decide whether they should issue a permit, said it's inappropriate," Louis-Rosenberg said.
There's two types of valley fill permits: individual and Nationwide 21. Large sites are supposed to obtain an individual permit, which carries a more stringent set of regulations requiring more data and proof that the project will not have an adverse impact on the environment. However, Nationwide 21 allows the Corps to issue a blanket permit for small things and, unlike the individual permits, does not require a public hearing.
Coal companies saw the value in nationwide permits, and would often break up large valley fills into smaller pieces in their permit applications in order to avoid the regulatory oversight of an
Listen to Ernie Thompson, resident of Horse Creek and former mine inspector, talk about the changes in law regarding valley fills.
individual permit. In this way, many valley fills were created when a nationwide permit was granted and residents did not notice until dumping began. Beginning with a court victory for advocates against mountaintop removal in 2007, Nationwide 21 permits were declared in violation of the Clean Water Act. This ruling remained in effect until the Fourth Circuit Court overturned it in early 2009.
Surface Mining Control and Reclamation Act (SMCRA)
On February 16th, 1972, a coal slurry impoundment ruptured in Buffalo Creek, W.Va. The rushing tidal wave of sludge killed over 120 people and left many thousands homeless, yet several days before the rupture a federal inspector had found the dam site in "satisfactory" safety. The dangers of strip mining had long been of concern to coalfield residents.
The increased mechanization of strip mining that left many union mining jobs and the encroaching growth of strip mines combined to spark a powerful grassroots movement to abolish strip mining. The tragedy of the Buffalo Creek Flood stoked these flames and five years later, in response to the growing political pressure from Southern Democrats and coalfield residents, Jimmy Carter signed the Surface Mining Control and Reclamation Act in 1977.
It did not abolish strip mining, instead stating that its primary goal was to "establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations." To do so, it created the Office of Surface Mining in the Department of the Interior and the regulations for them to enforce. The surface mines constructed before SMCRA are often referred to as "pre-law," while those after are called "post-law."
The SMCRA permit is the whole mining plan, top to bottom, including the blasting plan. The DEP administers SMCRA permits but, unlike the NPDES permits, the Interior Department's Office of Surface Mining and Reclamation maintains oversight. The DEP's Office of Explosives and Blasting also approves the blasting plan within the SMCRA permit. A typical Environmental Impact Statement is also required here, "but they usually don't get filled out," Louis-Rosenberg said.
SMCRA requires that "all surface coal mining operations back-fill, compact... and grade in order to restore the approximate original contour of the land with all high-walls, spoil piles and depressions eliminated." However, the WVDEP regularly grants exceptions to the Approximate Original Contour (AOC) rule. This despite one of the act's goals: to "assure that surface mining operations are not conducted where reclamation as required by this Act is not feasible."
Since 1977, the following language was added to SMCRA, weakening this goal:
In cases where an industrial, commercial, agricultural, residential or public facility (including recreational facilities) use is proposed or the postmining use of the affected land, the regulatory authority may grant a permit for a surface mining operation of the nature described....after consultation with the appropriate land use planning agencies, if any, the proposed post mining land use is deemed to constitute an equal or better economic use of the affected land as compared to pre mining use.
This clause allows coal companies to not restore a site's AOC, as long as it is put to a better economic or social use than it was before. Under this clause, prisons and a golf course have been constructed on mountaintop removal sites. One such prison has earned the name Sink-Sink because it does just that. The mountains, and the ecosystems they support, have an intrinsic cultural value to the residents of the Coal River Valley that cannot be measured in monetary terms, and yet under SMCRA the economic value of the land supersedes all others.
Mining Safety and Health Administration Permit
The federal Mining Safety and Health Administration oversees the regulatory structure of the mines. All mines have to pass muster on the safety of operating the mine and this is all detailed in the MSHA plan the coal companies must file. Part of MSHA's responsibility is approval and inspection of coal slurry
dams. MSHA focuses on the safety aspect of the structures, not their environmental impacts.