Mining Matters

By Cindy Rank

As portions of the world – including the U.S. – begin to seriously look beyond coal, regions once dominated by coal and coal mining are now facing clean-up of the inevitable detritus left behind by this once imposing presence.

And yet, even the remnants and hangers-on scream for attention.  The West Virginia Highlands Conservancy (WVHC) continues to join others in challenging where possible, commenting when called for, and reporting developments and new problems, here in the pages of The Highlands Voice.

What follows is a snapshot of some mining issues we’re watching as Spring comes to West Virginia.

Legal actions of note this month that involve WVHC:

  • Lexington Coal – This is an action against Lexington Coal Company for violations of selenium limits in its Clean Water Act (CWA) NPDES permits and conditions of Surface Mine Act (SMCRA) and the company’s CWA 401 certification for ionic pollution at two mines in Mingo County (July 2020 Voice).  By order on March 22, 2021 the Court held that the company is liable for selenium and ionic pollution violations and that WV Department of Environmental Protection (WV DEP) administrative actions against the company did not preclude our own citizen action. Having affirmed liability it is now up to the Court to determine what must be done to ensure compliance and also to calculate penalties.
  • The Bluestone Coal settlement (December 2020 Voice) was officially approved by the Court February 17, 2021. The settlement requires Bluestone to fix its selenium problem, draw up a compliance plan, and enact that plan within 12 months when permit limits for selenium are to be achieved. Also, as part of this settlement agreement $270,000 will be paid to WV Land Trust for an environmental mitigation project in the Tug Fork River intended to protect and preserve ecologically sensitive wetlands and floodplains along the Tug. 
  • Legal challenge of JMAC Leasing’s selenium pollution violations from its 970 acre Briar Mountain mine in Kanawha County (February 2021 Voice) continues to wind its way through court procedures. 
  • In mid-2020, WVHC joined in sending a Notice of Intent to Sue (NOI) to WVDEP when it failed to notify the federal office of surface mining (OSMRE) there may necessitate a program amendment due to the significant blow to the WV mine bonding program caused by ERP Mining Company default of its permit and reclamation obligations at over 100 mine sites with no sources of cash or other assets available for reclamation and water treatment. WVDEP sent a letter to Office of Surface Mining (OSMRE) and OSMRE responded, but failed to make the requisite determination of whether a state program amendment is required.  Instead, simply indicated its intent to work cooperatively with WVDEP and make such determination in the future.  There has been no further action so on March 12, 2021, in hopes of moving the process along and prompting both agencies to address the faltering bond program in West Virginia, we plaintiffs sent a Notice of Intent to sue to the Office of Surface Mining for failing to make the required determination.
  • Elsewhere in this issue of the Voice is an article about WVDEP regulation changes that lessen protection of streams by altering the biological assessment methodology (how and what bugs to count) in evaluating the overall biological health and ecosystem of the stream.  That information is used to guide the agency when determining appropriate discharge limitations in new permits.

 Clean-Up of orphaned mine sites:

Lengthy articles in untold issues of the Voice over the past 50+ years have bemoaned the inadequacies of WV’s permitting, reclamation, enforcement, and – after all is said and done – the mine clean-up program(s) that have failed to live up to the promise of even the best federal and state laws.

“Forfeited” sites 

With the passage of the Surface Mine Control and Reclamation Act (SMCRA) in 1977, the presumption was that all coal mining after that date would be done in compliance with permit requirements and performance standards set forth in the new law and regulations designed to implement that law. Included was a requirement that a company would guarantee money would be available for the state to complete the required reclamation if and when that company went bankrupt, or just disappeared.

Before receiving federal approval to regulate coal mining in West Virginia, the state had to assure OSMRE that WV had in place a program that guaranteed sufficient bonding for every permit, which it did.

These past 4 decades have been a struggle to uphold that commitment. 

The recent March 4th failure at the T&T Acid Mine Drainage (AMD) Treatment Facility is the most recent and perhaps most glaring example of the incredible fragility of even the best, most expensive efforts to contain the AMD beast in northern WV.

After mine blowouts in 1994 and 1995 at the forfeited T&T deep mine in Preston County there followed years of haggling over who and how to contain and control the pollution in and around Muddy Creek and the Cheat River downstream of Albright and Kingwood, WV.

WVHC was party to a 2007 lawsuit that held WVDEPs feet to the fire by requiring the agency to issue itself permits for maintaining water treatment at a number of forfeited mine sites all over the state – including the notorious T&T site.

WVHC brought another citizen suit in 2016 to force WVDEP to actually comply with its permit limits at the T&T site. The end result was the construction of an $8.5 million treatment facility near the mouth of Muddy Creek. By 2018 the treatment facility had become a source of some stability, benefitting local residents as well as white water rafters and other water lovers who frequent the area.

Friends of the Cheat, a watershed group with unbelievable dedication and talent, who have put years and years of work into caring for that area of the Cheat River, saw the water quality improve and life in the stream return. According to reports and for the first time in decades, essential microorganisms in the water had begun to regenerate, and last year, 10 species of fish were found in the stream.

Then BOOM, heavy rains pummeled the area in March 2021 and a surge of acid laden water from the deep mine apparently ruptured some of the ‘plumbing’ that transports the toxic water from the mine to the treatment facility, allowing hundreds of gallons of untreated water to bypass the system and flow instead into Muddy Creek and on into the Cheat dropping pH levels and staining the river bed once more.

Repairs were made within days, but the damage was done.

Whether AMD mainly in northern WV or selenium and ionic pollution mainly in southern WV, water pollution has proven to be an albatross around the neck of the WVDEP mine regulatory agency.

As part of that program bonding provisions, including the bond pool, are woefully inadequate.  Additionally, private bonding companies are finding themselves unable to cover reclamation costs as their client companies go belly-up.

[Perhaps needless to say, proper permitting – or denial – in the first place would negate the need for any of the hand wringing about bonding.]

The inadequacies of bonding are not only problematic here in WV. Coal producing regions all across the country are coming to terms with current mining operations that are just hanging on by a thread with less than needed financial backup. The sad state of affairs is being watched and challenged by citizen watchdog groups across the country.  

“Abandoned” sites

If we think our ability to fix and repair these forfeitures is hogtied by lack of funding (and political will), one need only look at the funding program established to deal with mines that were abandoned and left un-reclaimed before the 1977 Surface Mine Act was passed to understand the enormity of the devastating legacy of coal.

As WVHC President, I appeared before Congress on at least two occasions, as did my predecessor John Purbaugh, and many others like us – to call for the renewal/extension of the Abandoned Mine Land (AML) tax on companies currently mining coal, money that is put into a fund used to reclaim mines abandoned before the 1977 law went into effect.

(The original assumption was that the AML program would fix all the old “abandoned” mines in 15 years, and any mining done after the 1977 ACT would be done in compliance with the new law, would be done in a responsible manner, and would be bonded sufficiently to pick up the pieces should any company need to default on its permit.)

Now in 2021, State, regional and national coal watchdog groups are once again pleading with Congress to extend that AML program for a third time as tens of hundreds of those oldest pre-SMCRA mine sites are still need reclamation to control and contain water problems at un-, or poorly, reclaimed mine sites that left only unproductive land and polluted streams after the coal wealth boarded ‘Mr. Peabody’s coal train’ for points unknown.

Mountaintop Removal?

And lest I leave anyone thinking today’s challenges involve only cleaning up previous messes, make no mistake, other monsters like Mountain Top Removal (MTR) are alive and well and currently being permitted in the hills of southern WV (and throughout Appalachia). 

Though perhaps not technically “Mountaintop Removal” as defined by law (i.e., mining that removes the uppermost coal seam(s) across the entire ridgetop from side to side), operations using other methods of mining not technically defined as MTR are nonetheless still removing mountains

Take for example the Republic Energy (formerly Alpha Metallurgical, formerly Contura Energy, formerly Alpha Natural Resources, formerly Massey) Turkeyfoot mine planned for Clear Fork in Raleigh County, WV

The Turkeyfoot permit encompasses 1,085+ acres of Coal River Mountain and includes a combination of multiple mining methods: ‘highwall mining’, ‘area mining’, ‘contour mining’, ‘auger mining’, and ‘steep slope mining’.  Put ‘em all together and the end result is more mountains torn apart, more headwater streams obliterated, and daily blasting of rock spreading blankets of poisonous dust onto communities below. 

It may not fit the technical definition of MTR, but the effect is quite the same.

Bottom line: folks in southern WV and members of organizations like Coal River Mountain Watch are still fighting for their lives and communities as WVDEP continues to permit mammoth surface mines, whatever they’re called.

On the national front some members of Congress acknowledge that MTR is not a relic off the past, but rather continues to pose an ongoing threat to the health and wellbeing of people living near these huge mines. On March 19, 2021 Kentucky Congressman John Yarmuth reintroduced H.R. 2073, the Appalachian Community Health Emergency (ACHE) Act, legislation to halt all new or expanded mountaintop removal coal mining permits until federal officials can examine the practice’s health effects on surrounding communities.

Granted there’s a new administration in Washington and new people are administering the various programs that affect us all, but will this leopard ever change its spots?