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This news story originally provided by The Washington Post

THE FINE PRINT: A Word Accelerates Mountaintop Mining

Appalachia Is Paying Price for White House Rule Change

By Joby Warrick
Washington Post Staff Writer
Tuesday, August 17, 2004; Page A01

Last of three articles

BECKLEY, W.Va. -- The coal industry chafes at the name -- "mountaintop removal" -- but it aptly describes the novel mining method that became popular in this part of Appalachia in the late 1980s. Miners target a green peak, scrape it bare of trees and topsoil, and then blast away layer after layer of rock until the mountaintop is gone.

In just over a decade, coal miners used the technique to flatten hundreds of peaks across a region spanning West Virginia, eastern Kentucky and Tennessee. Thousands of tons of rocky debris were dumped into valleys, permanently burying more than 700 miles of mountain streams. By 1999, concerns over the damage to waterways triggered a backlash of lawsuits and court rulings that slowed the industry's growth to a trickle.

Today, mountaintop removal is booming again, and the practice of dumping mining debris into streambeds is explicitly protected, thanks to a small wording change to federal environmental regulations. U.S. officials simply reclassified the debris from objectionable "waste" to legally acceptable "fill."

The "fill rule," as the May 2002 rule change is now known, is a case study of how the Bush administration has attempted to reshape environmental policy in the face of fierce opposition from environmentalists, citizens groups and political opponents. Rather than proposing broad changes or drafting new legislation, administration officials often have taken existing regulations and made subtle tweaks that carry large consequences.

Sometimes the change hinges on a single critical phrase or definition. For example, when the Environmental Protection Agency announced proposals last year to control mercury emissions, it also moved to downgrade the "hazardous" classification of mercury pollution from power plants -- a seemingly minor change that effectively gave utilities 15 more years to implement the most costly controls. Earlier this year, the Energy Department helped insert wording into a Senate bill to reclassify millions of gallons of "high-level" radioactive waste as "incidental," a change that would spare the government the expense of removing and treating the waste.

The fill rule is one of several key changes to coal-mining regulations that have been enacted or proposed by the Bush administration, which took office promising to ease bureaucratic burdens for the coal industry and expand the nation's energy production. To administration officials and mining companies, the changes are simply clarifications that eliminated ambiguities in the law. To environmental groups, they are the administration's payback to an industry that has raised $9 million for Republicans since 1998. The coal industry is a political force in West Virginia, a vital swing state whose five electoral votes for George W. Bush helped put him over the top in 2000.

One proposed change -- described by administration officials as a "clarification" of the Clean Water Act -- would effectively void a two-decade-old ban on mining within 100 feet of a stream. Another proposal would scale back the federal government's legal obligation to police state mining agencies, by reclassifying certain duties from "nondiscretionary" to "discretionary."

In October 2001, the Bush administration intervened to change the focus of a federal mining study that was poised to recommend limits on the size of new mountaintop mines. And, in an internal policy change this spring, the administration promulgated guidelines that allow ditches dug by coal companies to serve as substitutes for streams that were being buried by debris.

"They call them 'clarifications,' but it's really all about removing obstacles," said Jack Spadaro, who regulated coal mines for 32 years as a federal mine inspector and senior mining safety officer. "They've made it easier for companies to dump mining waste into streams, and harder for citizens to challenge them."

Bush administration officials defend the new policies, saying they are in keeping with a national energy strategy that seeks greater independence from foreign sources without sacrificing environmental safeguards.

"It's hard to strike that balance, but we believe, right down to the core of this agency, that we can do both," said Jeffrey D. Jarrett, director of the federal Office of Surface Mining. Noting that it was Congress that approved the practice of mountaintop mining 30 years ago, Jarrett said the administration's actions have introduced a measure of "stability and certainty" for the mines and their neighbors.

Mining industry officials say the changes benefited ordinary Americans by ensuring a steady supply of cheap, domestic coal at a time of instability in global oil and natural gas markets. "President Bush recognized the value of coal to our economy, and the role it plays in providing electricity," said Jack N. Gerard, president of the National Mining Association. "The administration has been diligent in its efforts to avoid disruptions in our energy supply."

Government studies show that mountaintop mining inflicts a heavy toll. Streams that have not been buried under mining debris carry high levels of silt and toxic chemicals, experts say. About 5 percent of forest cover in southern West Virginia has been stripped away by mines, along with popular mountain vistas that can never be replaced.

With a rebounding industry now seeking permits for more and larger mines, the environmental impact is likely to grow, the reports show. One federal study projects that if current trends hold, over the next decade affected land will encompass 2,200 square miles, an area larger than Rhode Island.

"A huge percentage of the watershed is being filled in and mined out, and we have no idea what the downstream impacts will be," said one senior government scientist who has studied mountaintop mining extensively but insisted on anonymity for fear of repercussions at work. "All we know is that nothing on this scale has ever happened before."

Dismantling something as large as a mountain requires advanced technology, big machines and massive amounts of explosives. Opponents in West Virginia describe the result as "strip mines on steroids."

Rather than tunneling into a mountain's face to reach the coal, mountaintop miners remove as much as 600 vertical feet of summit to get at the coal seams inside. Many of the mines encompass multiple peaks and thousands of acres in between, including large swaths of temperate hardwoods and myriad streams.

After the trees are cleared away, miners detonate scores of explosive charges to shear slabs of rock from the underlying coal. Gargantuan machines called draglines clear away the rock with bucket scoops that can hold 100,000 pounds, or as much weight as 40 Toyota Corollas.

While the capital costs are enormous, so is the payoff to the industry. Traditional mines extract about 70 percent of the coal from an underground seam; the recovery rate for mountaintop mines approaches 100 percent. The new mines also require far fewer workers -- sometimes only a few dozen per mine. Still, those jobs are high-paying and highly coveted, and the mines themselves continue to generate billions of dollars for local economies. For those reasons, many state politicians and even labor unions embrace the technique.

A growing number in central Appalachia despise it. A poll commissioned by a West Virginia environmental group this year found that opponents of the practice outnumber supporters by 2 to 1. "Opposition is broad and deep, traversing all demographic groups and every region of the state," said Daniel Gotoff of Lake Snell Perry & Associates, a Democratic polling firm based in the District.

As more mountaintops disappear and sometimes entire villages along with them, resistance has spread. Coal companies have offered to buy and demolish houses near the mines, effectively depopulating settlements. Residents who remain recite a familiar litany of complaints: dust, truck traffic, constant blasting that rattles nerves and sometimes damages houses. Even more jarring for many is the sight of the destruction of the ancient hills, familiar landmarks and touchstones for generations of families.

"I've been coming up through these mountains since I was 5 years old. Now the place looks like an asteroid hit," Bo Webb, a retired businessman and Vietnam veteran, said of the 1,800-acre mountaintop mine above his house in central West Virginia's Raleigh County. "A lot of us up here have fought for our country. To see what is happening now to our homes makes me so mad."

The state's top elected officials, including Democratic Gov. Robert E. Wise Jr. and his Republican predecessor Cecil H. Underwood, have supported mountaintop mining as critical to the coal industry's existence in West Virginia. Appalachian coal competes not only against other energy sources -- such as cleaner-burning natural gas -- but also against coal imports and other coal-producing regions of the country.

"Intense competition leads to bigger mines," said Mark Muchow, West Virginia's chief administrator for revenue operations. "You need bigger mining operations just to stay competitive."

Coal industry officials also contend the miners are careful stewards of the land, strictly adhering to laws requiring them to rehabilitate sheared-off mountains by planting grass and trees. Some claim a positive aspect to the toppling of West Virginia's famous green peaks: In a region where flat land is at a premium, the industry has created what officials describe as "unique" spaces for commercial development or wildlife habitat. "People have used these sites to build high schools and golf courses -- they see it as an opportunity to stimulate the economy and create jobs," said Gerard, the National Mining Association president. "Some of the sites are so beautifully reclaimed, many people can't tell the difference."

But the environmental damage is hard to miss. In mining areas, the waste rock piles up in huge "valley fills" that are sometimes more than a mile long and hundreds of feet deep. They have buried more than 700 miles of headwater streams across central Appalachia, government studies show.

Other impacts are felt downstream. Federal water-quality studies have found substantially higher levels of selenium, a mineral that is toxic to fish in high doses -- in rivers near the mines. The U.S. Fish and Wildlife Service estimated that as many as 244 species, including several that are endangered, were being affected by the loss of forest and aquatic habitats. "The individual and cumulative impacts to both aquatic and terrestrial ecosystems are unprecedented," the agency's West Virginia field office concluded in a September 2001 report.

Only in the late 1990s did the problems begin to command the sustained attention of federal environmental officials. W. Michael McCabe, a deputy administrator of the Environmental Protection Agency in the late 1990s, recalled feeling astonished during a 1998 plane flight in which he passed over several of the largest mines in the middle of the lush West Virginia highlands. The denuded, flattened hills were a jarring sight, "like landing decks for alien spacecraft," he said.

McCabe said his agency had not anticipated the exponential growth of mountaintop mines. A key factor, he said, was a decision by mining companies in the 1980s to apply the techniques and supersize machines of western strip mines to Appalachia, where coal mines historically had been smaller and less efficient.

"The acreage affected by these mines went through the roof -- from the hundreds to the thousands of acres," said McCabe, now a private consultant. "It was the difference between a hand saw and a chain saw."

Ironically, the fill rule that reopened the door to mountaintop mining grew out of an attempt by the Clinton administration to strengthen government oversight of these dramatically larger new mines. But what happened to the proposal shows how different administrations can bend the policies of their predecessors to meet their own priorities.

By mid-1998, McCabe and other senior EPA officials wanted a broad review of federal policies for mountaintop mines. They were motivated not only by accumulating evidence from the field but also by growing external pressure from local environmentalists and citizens groups, current and former agency officials said in interviews.

A lawsuit filed in 1998 accused federal agencies of violating the Clean Water Act by granting permits for mountaintop mines. The suit, filed by the environmental group West Virginia Highlands Conservancy, cited a little-noticed clause in the regulations of the Army Corps of Engineers, the agency that grants approval for most construction projects involving alterations to streams, rivers or wetlands. While the Army allowed builders to put clean "fill" materials in waterways for purposes such as building bridges or artificial reefs, the rules explicitly forbade the dumping of waste.

As the Army defined it, mining debris was "clearly waste," said Joe Lovett, director of the Appalachian Center for the Economy and the Environment, a nonprofit law firm that represented activists in the suit. Yet, for more than a decade, Army officials had issued the permits anyway.

"The Army was allowing coal companies to use waterways as giant trash heaps, without any environmental analysis," Lovett said. "They did not have the authority to do that."

In 1999, a federal judge agreed with Lovett's interpretation in a decision that called into question the legality of virtually every mountaintop mine in Appalachia. Faced with a potentially disastrous shutdown of the region's most powerful industry, the Clinton administration agreed to an out-of-court settlement: The activists would drop the lawsuit in exchange for a federal promise of closer scrutiny of mining permits and a thorough scientific review, called an environmental impact statement.

The administration would allow mining debris to be deposited in streams, but only as part of a comprehensive approach that would address long-term environmental concerns. "We would not go forward with the fill rule except as part of this comprehensive approach," McCabe said.

But the comprehensive approach went nowhere. Negotiations between the EPA and industry officials on proposals for limiting the size of valley fills stalled and then stopped altogether as the presidential election of 2000 approached. The court ruling that questioned the legality of valley fills was overturned on appeal. Meanwhile, West Virginia coal executives had begun to stake their hopes on an administration change in Washington. The state's coal firms raised $275,000 for Bush. Many West Virginia coal miners, fearing that Democratic contender Al Gore's environmental policies would eliminate coal field jobs, joined prominent business leaders in campaigning for the Texas governor.

After the election, administration officials publicly promised to remove the legal bureaucratic roadblocks to the mining permits. Newly appointed Deputy Interior Secretary J. Steven Griles, a former coal industry lobbyist, made a specific pledge to the West Virginia Coal Association in a speech in August 2001:

"We will fix the federal rules very soon on water and spoil placement," Griles said.

Under the new Bush administration, the "fixes" were rolled out in quick succession. The first was the fill rule, which had been proposed by the Clinton administration but essentially abandoned in the face of harsh criticism from local opponents and environmentalists, who flooded the EPA with 17,000 letters and public comments.

On April 6, 2001, four months after Bush's inauguration, representatives of the National Mining Association met with EPA officials for 90 minutes to argue for reviving the rule -- but with significant changes. For starters, the mining representatives said, the Clinton-era rule set too many limits on the kinds of materials that could be classified as "fill," according to an EPA memo summarizing the meeting.

Industry officials "expressed opposition to adding a definition of 'unsuitable fill material,' " the memo states.

The attempt to revive the rule drew protests not only from environmentalists but also from many Republicans in Congress. Rep. Christopher Shays (R-Conn.) joined Rep. Frank Pallone Jr. (D-N.J.) in sponsoring a bill that would have outlawed dumping mine waste in streams. And, as the Bush administration had not scheduled additional public hearings on the revised rule, Sen. Joseph I. Lieberman (D-Conn.) convened a Senate hearing to decry what he described as a "shameful" attempt to weaken the Clean Water Act. Among those speaking out against the rule at the hearing was Kevin Richardson, a Kentucky native and member of the pop group the Backstreet Boys.

Yet, the final version of the Bush administration's fill rule published in May 2002 contained nearly all the changes the mining industry requested. The definition of "fill" was expanded to include "rock, sand, clay, plastics, construction debris, wood chips [and] overburden from mining." Only garbage was expressly excluded.

As the fill rule moved through the bureaucracy, the administration was taking steps to contain another potential threat to mountaintop mining: the environmental impact study begun under President Bill Clinton to assess the need for limits on the size of future mines.

As part of the study, federal scientists and engineers had spent more than two years documenting damage to Appalachian streams and wildlife. Some panel members had prepared draft recommendations that called for restricting valley fills larger than 250 acres. But Griles, the Interior Department undersecretary, informed panel members in an Oct. 5, 2001, memo that their study lacked the proper focus and needed restructuring. He ordered recommendations for "centralizing and streamlining coal-mine permitting," according to the memo, which the environmental law firm Earthjustice obtained under the Freedom of Information Act.

"We do not believe the [study] as currently drafted focuses sufficiently on those goals," Griles wrote.

Scientists who were at work on the report found the change in direction inexplicable, internal memos and e-mails show. "Our proposed approach was subsequently voted down within the executive committee," one Fish and Wildlife Service employee explained to colleagues in a memo, "in part because a decision appears to have been made that even minor modifications to current regulatory practices are now considered to be outside the scope" of the study.

The Bush administration defended its handling of the environmental study. In a written statement, the Interior Department said Griles had not sought to influence the panel. The statement notes that Griles had urged scientists to recommend ways to allow mining to continue "in an environmentally sound manner."

By the time the Bush administration released the study, all proposals for limiting valley fills had indeed been omitted. And, as Griles had urged, the document's main recommendations called for cutting bureaucratic red tape and speeding up the permitting process.

One government scientist complained in an e-mail to colleagues: "All we have proposed is alternative locations to house the rubber stamp that issues the permits."

In January 2004, the administration took another major step to help the coal industry dodge legal obstacles. At the time, mining permits were being challenged in court on grounds that they violated a 20-year-old regulation that banned mining within 100 feet of a stream. Like the fill rule, the "buffer zone" rule, adopted during the Reagan administration, was widely ignored in practice. Owing to the sheer size of the projects, mountaintop mining in Appalachia always entailed destroying streams.

Under the Bush administration's proposal, miners would be exempt from the buffer rule, provided they could show that they took measures "to the extent possible" to protect water quality and avoid harm to fish and wildlife. Administration officials contend that the buffer-zone rule does not weaken environmental protections but merely recognizes a reality that has existed in the coal fields for decades.

The changes have not entirely eliminated legal threats to mining. Last month, a federal judge revoked permits for 11 West Virginia mines, ruling that federal officials used improper procedures in granting fast-track approval for new mines. Industry officials are preparing an appeal while lawyers study the implications of the ruling.

But overall, the cumulative impact of the regulatory changes has been to close legal avenues industry opponents use to challenge the practice that industry officials prefer to call "steep-slope mining," coal supporters and critics agree.

"These changes were unequivocally helpful," Chris Hamilton, vice president of the West Virginia Coal Association, said in an interview. "By revising certain ambiguous regulations and contorted legal interpretations of the Clean Water Act, the administration has improved regulatory stability and predictability."

Buoyed by higher coal prices and an improving regulatory climate, West Virginia's coal companies recently took to the road to make their case for increased public support for mountaintop removal. Last month, at a workshop in Shepherdstown, W.Va., co-sponsored by state academic and elected leaders, industry executives argued that increased coal production could even help win the war against terrorism.

The workshop's theme: "The role of coal in economic and homeland security."

Coal boosters at the seminar touted the industry's present and future role as energy supplier to the nation, noting that the United States' vast domestic coal reserve generates half of the nation's electricity supply, and could continue to do so for centuries, at current consumption rates. Officials also played up the economic importance of an industry that pays $1 billion in direct wages in West Virginia and accounts for nearly 13 percent of the gross state product.

"Coal keeps the lights on," said Roger Lilly, marketing manager for Walker Machinery Co., a supplier of heavy equipment for mountaintop mines. "Coal today also is a cleaner, greener fuel, and it's our bridge to the future. We've got to show people what a great job we're doing."

Critics of the industry, however, feel anything but secure.

"It makes me furious," said Janice Nease, 68, a retired teacher who became an anti-mining activist after her village, a settlement of about 30 homes, was bought and destroyed to make room for a mine. "We keep on plugging away, but it's harder."

For years, Maria Gunnoe, 36, a waitress and single mother, watched nervously as coal companies hacked their way north along a ridge of mountains near the town of Bob White, W.Va. Then, three years ago, the first mining crews arrived on what she calls "my mountain," a rocky ridge called Island Creek Mountain directly above her house, her family's home for three generations.

"I sit here in the evening and listen to the equipment ripping and tearing at the mountain," Gunnoe, a coal miner's daughter, said as she sat on her porch on a late spring afternoon. "It's the same as if they were ripping and tearing at the siding of my house."

She has seen flooding wash away a third of her front yard and destroy the only bridge that connects her property to a public highway. Her car has been vandalized and her children have been bullied because of her outspoken opposition to the mine, she said. Her nerves are raw from the near-constant blasting, which continues even on holidays. "It sends the kids screaming, running through the house. The dogs hit the dirt," she said.

Far worse, she said, is the emotional toll. A peak that served as the natural backdrop for her entire life, the lives of her parents, her grandparents and her two young children is vanishing before her eyes. The family has received offers from coal companies to sell the small wood-frame cottage her father built. Gunnoe says she will never sell, but she wonders how long her family can hold on.

"The true cost of coal is here," she said quietly, staring off into the crisp mountain air, at her mountain. "We pay for it with our lives and our future. And also our past."

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