By Cindy Rank
West Virginia Highlands Conservancy filed its first lawsuit against strip mining in 1967. That was the beginning of 50 years of leadership on coal mining issues in West Virginia. Now, in 2017, together with local and national partners, we continue to challenge unwise mining practices, weak enforcement of laws and regulations, and individual mining operations that pollute the environment and harm local communities.
Land reclamation and new law
From its inception the West Virginia Highlands Conservancy challenged the state of West Virginia’s poor control of the coal industry, fighting against mining threats to specific places such as wilderness and public lands (Dolly Sods, Shavers Fork, Monongahela National Forest, Cranberry Backcountry, etc.) and small communities like Sugar Grove in Marion County and Duo in Greenbrier County. In early 1970s the organization called for the abolition of strip mining along with the group Save Our Mountains, Ken Hechler, Jay Rockefeller, and others.
After years of Congressional wrangling the Federal Surface Mine Control and Reclamation Act was passed in 1977. As the state of WV assumed primacy for implementing the requirements of the Federal Act in West Virginia, the Highlands Conservancy became more heavily involved at the policy and regulatory level, repeatedly advocating for strict regulation of the industry and full compliance with the newly enacted laws.
Acid mine drainage and bonding
With the new law, land was no longer left in total rubble piles from uncontrolled shoot and shove mining practices. Even with the more conscientious [read forced] reclamation of the land, enforcement of the new law and adequate attention to cleanup of old sites did not come easily.
Every step along the way the coal industry devised ways to confound the regulatory agencies, stretching the law and regulations sometimes beyond recognition, using political pressure to influence policy, making enforcement a bit dicey, and rendering citizen monitoring of mining operations all that more difficult and all that more necessary.
Increased mining in northern West Virginia in the 1980s meant mining acid producing coal seams which discharged acidic waters laced with harmful amounts of metals like Iron, Manganese and Aluminum into lightly buffered streams, streams with little to no capacity to assimilate the toxic drainage. The result has been a legacy of polluted streams and treatment costs that far exceed any bond monies the companies were required to pay.
The Conservancy engaged in informal meetings with both federal and state regulators, pursued administrative and court appeals to strengthen the regulatory program, testified before the United States Congress about the growing problems with acid mine drainage at post-law sites and the need for extending the Abandoned Mine Program to clean up pre-law sites.
From filing a Lands Unsuitable for Mining petition for acid prone watersheds, to suing for Federal takeover of the West Virginia regulatory program in 1988, to lobbying the West Virginia legislature for additional funds for reclamation and water treatment at forfeited sites, to a successful mandamus action from the WV Supreme Court that held the state responsible for full reclamation at mine sites when the operator walked away, there has been no end.
A settlement agreement in the 1988 litigation resulted in significant, though relatively short-lived, improvements in the state regulatory program. But it wasn’t just the weakness of the state regulatory program that the Conservancy kept fighting. New mining methods and recurring reclamation failures increasingly led to additional concerns.
In 1986 WVHC organized local and legal opposition to successfully challenge the expansion of a 2,000-acre acid producing strip mine in Upshur County, WV. The expansion would have included a 1-mile long valley fill in the headwaters of a native brook trout stream and a 90-foot-high dam across a farm field downstream to control drainage from future mining. Turns out the Upshur County mine complex was a harbinger of even more nasty things to come.
Reclamation and Mountaintop Removal
In the early 1990’s requirements of the Clean Air Act as well as costly water treatment liabilities in the northern, higher sulfur, acid prone coalfields of WV, caused mining to shift back to the southern coalfields, areas formerly declared “mined out”. Tax credits enabled industry to invest in new technology and bigger machinery and other financial incentives encouraged mining the thinner and more difficult to get to seams of coal layered in the steep southern mountains.
Mountaintop removal bullied its way onto the scene and expanded beyond all expectations.
During the ‘90’s WVHC played a key role in laying the groundwork for the growing opposition to mountaintop removal mining and in convincing state and federal regulatory agencies of the significance and overall impact of the ever-increasing number and size of valley fills being permitted. Conservancy members participated in state sponsored mine tours, were appointed to legislative committees established to review state policies of mitigating for streams buried under valley fills, and wrote articles describing the practice and the convoluted permitting process. Members also participated in many public and media forums and debates with government and industry representatives. Appointed to the governor’s task force on mountaintop removal mining in 1998, WVHC offered a minority report that pointed to the illegality of filling streams and to the environmental and economic harm caused by mountaintop removal mining. In 1997 – in the days before wide-spread use of GIS – we compiled the first map visually documenting the extent of stream loss from mountaintop removal and valley fills permitted in the three county area of Boone, Logan and Mingo in southern West Virginia.
In 1998 we were the first organization to join litigation that challenged the destructive practice of mountaintop removal. A favorable court decision on one count of that litigation upheld the Buffer Zone Rule in the Surface Mine Act as requiring no mining be allowed within 100 feet of a stream, a ruling that has been challenged and debated and studied and replaced and overturned for the ensuing two decades with no resolution in sight.
With regard to several other portions of the 1998 Bragg v Robertson litigation, WVHC was instrumental in convincing EPA to prepare the first ever Environmental Impact Statement (EIS) on the effects of mountaintop removal mining and valley fills with the intent of finding ways to reduce the impact of those activities. Although the politically tainted recommendations of the final 2005 EIS called instead for streamlining the permitting process, scientific studies contained in the report have been invaluable as some of the first official documentation of the destructive impacts of mountaintop removal mining and the foundation for more to come. Few permits were issued while the EIS was being prepared.
Stream and human health
Together with a growing number of organizations concerned about the mammoth destruction of mountaintop removal coal mining, the Highlands Conservancy continued its vigorous opposition to this destructive method of mining by engaging in litigation, education, actions, publicity and research, and has joined in several ongoing legal efforts to preserve Blair Mountain Battlefield in Logan County.
Beginning in 2005 West Virginia Highlands Conservancy represented by the Appalachian Center (now Appalachian Mountain Advocates) challenged inadequate Clean Water Act 404 “fill” permit applications submitted to the Army Corps of Engineers, and later successfully litigated the inadequate and illegal permitting process itself.
Efforts to tighten permits and strengthen regulations have been partially successful; but permit denials are few and the practice of Mountaintop Removal, though somewhat reduced, has continued. The term “Mountaintop Removal” may not be the technically correct name for these operations, but huge strip mines known by other names continue to be permitted, blasting apart mountains above communities and raining toxic dust and chemicals onto homes and gardens below. Streams are no longer “filled” but rather “mined through”, i.e. torn apart, and (supposedly) re-created.
Health impacts to local residents living nearby had been largely ignored until commitments by the federal government in 2016 directed the National Academies of Sciences to assess the research and nearly three dozen health studies that that have already been done. WV Highlands Conservancy was represented and spoke at National Academies hearings in Logan with hopes for more to come …. Incredibly, in August 2017, the new administration in Washington D.C. has put a halt to the National Academies study.
Stream impacts are as monumental as the acid mine drainage legacy that haunts the state. These big mines leave behind a legacy of hundreds of streams destroyed by burying headwaters under tons of “excess overburden” and degraded by selenium pollution and ionic stress from dissolved salts that diminish water quality and harm aquatic life. Represented by Appalachian Mountain Advocates and Public Justice, the Conservancy and our co-Plaintiffs Ohio Valley Environmental Coalition, WV Rivers Coalition, and Sierra Club have won court decisions that hold individual mining companies responsible for expensive and extensive treatment at many of these polluting mines, and, in some cases, for making additional payments to independent land protection organizations boosting their efforts to preserve and protect properties especially in watersheds harmed by Mountaintop Removal Mining where possible.
Reclamation costs have increased but earlier warnings and ongoing legal efforts to require higher bonds and sufficient financial guarantees have pretty much limped along or stalled completely and now the proverbial chickens are coming home to roost. State agencies are left to fumble around for ways to deal with the land and water problems that remain. And at the end of the day, the cost of the state’s short-sightedness will be borne by the people of West Virginia.
On another note, if mountaintop removal surface mining is strip mining on steroids, longwall underground mining is deep mining on steroids and hasn’t gone completely unnoticed by the Conservancy. With the increased cost and liability of big surface mines and the reduced reliance on coal for energy, longwall deep mining – especially for metallurgical coal destined for export and steel making has increased … and with it comes increased subsidence damage to properties, homes, wells and streams. The Conservancy continues to monitor streams and wells near the 6,000-acre Tygart #1 longwall operation and recognizes the need for further vigilance in that area.
We work with local and national groups to oppose weakening amendments to water and mining laws, to hold accountable the coal industry and agencies empowered to regulate that industry for the protection of the earth and her inhabitants.