By Lee Buchsbaum

“The Spruce No. 1 mine is one of the largest surface mining operations ever authorized in Appalachia. It is located in Logan County, W.Va., in the Spruce Fork Watershed, which has been impacted by previous mining activities. The Mingo Logan Coal Co. has already been authorized by the U.S. Army Corps of Engineers, Huntington District (Corps) to construct six “valley fills” and numerous sedimentation ponds in Seng Camp Branch, Pigeonroost Branch and Oldhouse Branch, and certain tributaries to those waters by discharging excess spoil generated by surface coal mining operations. These on-site streams are tributaries of and exhibit surface water connections to Spruce Fork of the Little Coal River, which ultimately flows into the Coal River.”

“The EPA has reason to believe that the Spruce No. 1 mine, as currently authorized, could result in unacceptable adverse effects to fish and wildlife resources. The EPA has issued a public notice of a Proposed Determination (PDF) (46 pp, 240K, About PDF) to restrict or prohibit the discharge of fill material at the Spruce No. 1 mine project site consistent with our authority under Section 404(c) of the Clean Water Act. EPA is concerned the project could result in unacceptable adverse effects on the aquatic ecosystem, particularly to fish and wildlife resources and water quality. The EPA is also concerned the project may have cumulative adverse impacts. The EPA believes the Spruce No. 1 project, in conjunction with numerous other mining operations either under construction or proposed for the Coal River sub-basin, may contribute to the cumulative loss of water quality, aquatic and forest resources. The Coal River sub-basin is already heavily mined and demonstrates impacts associated with surface coal mining.”

The two paragraphs above, taken from the EPA’s Web site devoted to the Spruce Fork mine controversy, encapsulate in dry terms the EPA’s case against this contentious surface mine and, to a larger extent, all of Appalachian mining.

After months of protracted and often contentious “negotiations” with various stakeholders, on March 26, 2010, the EPA formally announced its intention “under the Clean Water Act to significantly restrict or prohibit mountain top mining at the Spruce No. 1 surface mine in Logan County, W.Va.” Objecting to the size and scope of the already permitted mine, “The EPA’s proposed determination comes after extended discussions with the company failed to produce an agreement that would lead to a significant decrease of the environmental and health impacts of the Spruce No. 1 mine.” 

In the objection letter, Shawn Garvin, EPA regional administrator for the Mid-Atlantic region, stated though “coal, and coal mining, is part of our nation’s energy future…we must prevent the significant and irreversible damage that comes from mining pollution—and the damage from this project would be irreversible. This recommendation is consistent with our broader Clean Water Act (CWA) efforts in Central Appalachia. The EPA has a duty under the law to protect water quality and safeguard the people who rely on these waters for drinking, fishing and swimming.”

Days later, on April 1, the EPA issued a sweeping memorandum detailing its radical new Appalachian surface mining regulations that, combined with the nebulous concept of environmental justice, may very well curtail most coal mining in the region, be it surface or underground. While paying careful concern for Appalachia’s Benthic or Mayfly insect communities, no where in the EPA’s guidance is there a reference to the cumulative impacts of the whole-scale de-investment in the region that the new regulations, if allowed to stand, will force. But the affected citizens, especially those in Logan and Boone counties now staring at the big stick of the Federal Government are becoming keenly aware of the negative affects these rules will have on their lives and communities. 

Though the new regulations are effective immediately, the EPA did announce a public comment period to last through December 1, 2010, with the stated goal of the EPA to issue “final guidance after consideration of public comments and the results of the Science Advisory Board review” no later than April 1, 2011.  

In the same way that many of the regional mining companies are stuck in a legal limbo as they desperately search for methods to fight off the stunning new fiats, Logan County residents now find themselves at Ground Zero in what may be the biggest challenge to Appalachian coal mining in our nation’s history. As part of the comment period, the EPA has begun setting up a series of public hearings. In May one of the largest to date was held in the Charleston Civic Center. To folks on either side of the battle lines, stakes could not be higher as the EPA begins to listen and “more effectively consider the voices of adversely affected communities in the Appalachian coalfields.” 

At the end of the day, what those “adverse affects” are, what they constitute, who determines those affects and what those judgments become will determine the future of Central Appalachia for generations to come.

EPA Justice: Hard Enough World Without Having to Get it Done In on Your Own
“Since 1992, nearly 2,000 miles of Appalachian streams have been filled at a rate of 120 miles per year by surface mining practices. A recent EPA study found nine out of every 10 streams downstream of surface mining operations exhibit significant impacts to aquatic life. Another federal study found elevated levels of highly toxic and bioaccumulative selenium in streams downstream of valley fills.

The EPA recently conducted a Permit Quality Review (PQR) in West Virginia, Kentucky, Tennessee and Ohio. During that review, it became clear that many of the state-issued NPDES permits failed to comply with the requirements of the CWA in several respects. In particular, the permits often lacked any water quality based effluent limits (WQBELs) to implement applicable numeric or narrative water quality standards.

Surface coal mining can have adverse environmental and health impacts on neighboring communities. The federal statutes and regulations under which the EPA, the Corps, OSM, and the states evaluate permit applications for surface coal mining require consideration of the full range of potential impacts on the environment, human health and communities. Executive Order 12898 requires federal agencies to give particularly careful consideration to potential impacts on low-income or minority populations.” —From April 2010, EPA memo “Appalachian Mountaintop Mining Summary.”

Anyone familiar with the coal industry has seen this before. Just about anyone who has ever worked in the industry has been here before too: facing down the barrel of a bust.  It’s good when the goody is to be gotten. But it’s hard when it’s not market forces but radical government policy that’s about to take away your livelihood. The Clean Air Acts wiped out a whole generation of coal miners. How many communities blew away like dry leaves in the 1990s? How many of your friends moved off? Today acid rain is no longer a part of the environmental lexicon. It’s been replaced by other weapons of environmental justice.

Boone and Logan counties constitute the bleeding heart of West Virginia’s coal country. They are the two highest producing counties in the state. And a good portion of their coal is surface mined. With billions of recoverable tons, “we could be mining coal for another 100-150 years no problem. This is coal you can get and technology will allow you to get all of it down the road,” said Roger Horton, a haul truck operator at Patriot Coal’s Guyan mine, union member and creator of the non-profit activist group Citizens for Coal. 

In Logan County, coal provides for over 60% of the total county budget. Seven Logan County operations were part of the EPA’s infamous list of 79, including Spruce Fork. Today it is impossible to predict how many other mines will be closed down by the new EPA regulations. What’s clear is that “if Spruce Fork were opening there would be an additional 250 jobs in the area, generating hundreds of others. Those jobs combined would equal out to be millions in additional pay rolls, more developments, more tax revenue for all of us,” said Horton.

“By virtue of the Clean Air Act, by virtue of NAFTA, by virtue of every free trade agreement we have allowed jobs to leave this country without replacing them,” said Horton. “We keep shooting ourselves and I’ve decided we’re not going to take it anymore. I’m on the Coal Miners Political Action Committee, and for anyone who runs for office, the first question we’ll ask them is ‘Are you going to support jobs in this area, and how are you going to do it?’ If they don’t have a plan, we don’t support them. We have to figure out how we can employ our people and divide the tax base to continue funding social programs like social security and welfare.”

Citizen’s For Coal has been actively organizing and agitating throughout Appalachia, working on the grassroots level alongside the West Virginia Coal Association, FACES of Coal and other groups. Uniting around a common foe, Horton and others met with the EPA to try to help foster compromise. “I was right there in their office and I asked them point blank ‘What are you going to do about all the jobs you’re going kill? What are you going to do for all the miners who’ll be thrown out of work? And they shrugged and said to us that ‘that’s not in our job description,’” said Horton.

As a public official in Logan County where the coal industry is central, if he does not wake up every morning worrying about guys having jobs producing coal, Art Kirkendoll, Logan County Commissioner, knows he shouldn’t have this job. A former coal miner himself, he knows very well “for us, coal mining is a matter of survival.”

“I tell folks coming in from out of state the biggest problem we have is that those who object to coal mining are just not really familiar with the beauty, the byproduct and the activity coal produces in our area. They see the ads from the anti-coal groups. I ask them ‘please, before you form your opinion, look at what we do.’ We have to mountaintop mine. We do not have a way to increase our flat, developable land unless we take the tops off some of these mountains. We only disturb 3%-4% of the mountain ranges and we actually need more flat land than that to compete. We can’t compete because we don’t have the acreage. We’re sitting down in the valleys on 40° slopes. We do not have large, naturally occurring parcels of flat land. But now, due to post-mining land usage programs, we have a new regional jail, new airport, hotel and conference center, convention center, shopping mall, golf course and various housing developments.”

The relatively new Chief Logan Lodge was built on a reclaimed mine site.  It has approximately three valley fills, though it’s impossible to know the site was a mine unless you ask.  In Holden, W.Va., and along the Mingo County border, influential coal and lumber entrepreneur Buck Hairless built a large Industrial Park on reclaimed mine lands. “You have a wood products plant operating now where there used to be part of the Hobet surface mine.  Once it closed down, we had approximately 350 full-time positions created at the wood products plant. We also have about 60 people working at a new concrete plant next door,” said Horton.

Kirkendoll and others have long realized the flattened post-mined land is key to the region’s future. “We want to put our new communities up there because these companies can leave the infrastructure—the water, the sewer—and we can build on this new flat parcel. That will remove our citizens and towns from floodplains,” said Kirkendoll.

Going forward, Horton and others look forward to the new Twin Branch Race Track—a drag strip, which hopefully will be NASCAR sanctioned. “We have a lot of stimulus money to build it and increase the amount of Hatfield-McCoy ATV trails that are on previously mined areas. Where the coal companies once had roads, we’ve turned them into trail rides, ATV trails and campsites. It’s nothing but win-win,” said Horton.

Even with the downturn in the coal market, Logan County has only 9% unemployment, a little below the national average. “It’s been well documented that every coal mining job creates six to seven additional jobs. This area is rich with direct coal support jobs, people who fix the equipment, sell the supplies, everything the coal companies need, and they pay a decent wage while employing a decent number of people,” said Kirkendoll.

Jim Winkler, vice president of the Logan Coal Vendors Association and owner of American Hydraulic, which does equipment repair work for a number of mines, has been in business for almost 30 years. “We have 38 employees right here. Any negativity on the coal industry reflects right back on the vendors. It hurts us. With these new EPA rules, I worry about not only myself and my business, but also my people. Depending on the future I don’t know if I can maintain what we have,” said Winkler. 

With roughly 200 members, the Coal Vendors Association represents about 15,000 direct workers or 100,000 people altogether including family members and dependents. “Coal is our bread and butter, it generates 90% of our business. What am I going to tell my employees if the EPA starts shutting down all these mines? What are they going to do?” asked Winkler.

At the EPA Hearing the People of Logan and Coal Country Spoke
“Federal laws and regulations also require meaningful opportunities be provided for public participation in the permit decision-making process.”

Dozens of police guarded the Charleston Civic Center as busses full of coal miners, their wives and families, and other concerned citizens arrived for the FACES rally prior to the EPA public hearing. After speeches by Bill Rainey, president of the West Virginia Coal Association and Jim Bunn, chairman of the association and others, the facility began filling with folks from all political sides.

The EPA hearing began at 7 p.m. and continued until late into the night with a scheduled ending at midnight though most participants and witnesses had left long before. Each speaker was given two minutes to address the silent EPA officials sitting behind tables on the stage. No EPA officials spoke at the event, only contract employees.  Throughout the hearing, the panel on stage remained passive, moving only to refill their water glasses, but never to interact or connect with any speaker.

After some quick introductions and a reading of the rules, first to speak was John McDaniel, superintendent of the embattled Spruce Fork Mingo Logan mine. In his brief time, he wearily addressed the silent officials like a exasperated parent trying to control their headstrong 18-year-old for the millionth time. Calling the rationale for rescinding the company’s permit more political than scientific, McDaniel chastised the EPA for its capriciousness, its arbitrary thresholds, and its alleged ability to “revoke the permit at any time based upon subjective water quality standards.” 

McDaniel was followed by U.S. Representative Nick Rahall, who, after three decades in office, is fighting through his most difficult re-election campaign to date. One of the authors of the 1977 Surface Mine Control and Reclamation Act (SMCRA) and a fellow Democrat, Rahall used his two minutes to plead with EPA Administrator Lisa P. Jackson to have the same compassion with West Virginia’s citizens as she professed to have for all those living and working in the Gulf who have been affected by BP’s unmitigated disaster. “I oppose this veto because it will do to our coal miners precisely what Administrator Jackson is so concerned about doing to fisherman in the Gulf Region. It will keep our coal miners in an untenable, emotional limbo. It would say to them you’re not going to make money. You’re not going to feed your family.” 

Though Rahall supports achieving a balance between energy development and environmental protection, during his allotted time he predicted the EPA’s course “will have a chilling effect on the coal industry in the Appalachian Region. It will send a message that investing in coal mining is nothing but a high risk.” He ended by accusing the EPA of over reach and undermining its own credibility. “If the EPA can veto this permit, a permit 10 years in the making, that’s subject to the only environmental impact statement ever written for a surface mine, then not a single, solitary thing will stand in the way of the EPA or some future EPA to decide for whatever reason to reach back and veto a previously granted permit. Without some degree of finality, the permitting process is worthless.” 

Later in the evening, Wilma Zigmond, superintendent of the Logan County schools, spoke to the impact and contributions coal makes in her region. “The property tax on coal and coal-related industries in Logan County generates approximately $7.5 million in excess levy tax revenue for Logan County schools. This revenue provides for textbooks, academic travel for students, and school libraries, $260,000 for bands, $300,000 for technology equipment…” and millions in construction, security, playground, library and health department funding, not to mention $4,981,000 in service and professional salaries. Essentially the entirety of Logan County’s educational system is funded by the coal industry the EPA is now threatening. 

Though the EPA makes its case that a revocation of the Spruce permit and the new surface mining rules are rooted in the notion of ensuring environmental justice, Zigmond linked loss of jobs to loss of economic and emotional well being. “Historically the coal and coal related industries have provided higher paying jobs…unemployment brings despair, depression and abuse. Consider the losses both financial and emotional, and the impact this will have on the Logan County School System and our families. Remember, coal keeps the lights on and our schools running.”

After waiting his turn, Kirkendoll praised the coal companies for helping ensure that today 99% of the county residents have potable water, up from 15% in 1981. He reminded the silent EPA listeners that the level land created by the coal companies in their post mining land use plans allows the developable surface lands in the county to expand, along with opportunities for new industries. “We have an airport, an industrial park, a regional jail, a wood products plant, a recreation center among other things because we took this land and did the right thing with it after the extraction of coal.” 

Shortly afterward, James Milan of the Logan Coal Vendor’s Association, mechanic and shop owner, reminded the panel that all spin off jobs, everything from mechanical to retail, service to government, depends on coal. “The barber shops, beauty shops, service stations, schools, hospitals, the spin off jobs outnumber the mining jobs five to one. The cycle of life in our region depends on coal.” Addressing the EPA, Winkler testified that although “not all of us do business with Spruce mine, all of us will benefit, tax dollars, money for schools, recreation and parks.”

Myron Jones of Rish Equipment, employer of hundreds of workers who rely on jobs generated by surface mining asked how, “in today’s economy, how can the EPA jeopardize even one job? You’re putting people out of work and putting our state out of business. Our nation desperately needs low cost energy to remain competitive on the world stage, and West Virginia can provide this low cost energy. This is unconscionable,” he said.

Later in the evening Randy Maggard of Argus Energy, who is supposedly a member of the EPA’s own Science Advisory Board on the ecological impact associated with mountaintop mining, asked when he was going to be notified or called to any Advisory Board meetings. After being informed he has been a member since November 2009, he stated that as of April 1, “I still have not heard from the U.S. EPA regarding the viewpoint of the science advisory board.” 

With time running out, Randy asked the panel, “Why even hold this hearing? The EPA’s decisions are not based on science. They’re based on politics. The EPA wants to end coal mining.” While moving away from the microphone Maggard reminded the panelists that “remember, we will vote in November.” At the end of the day, the ballot box may be the only way to affect change.

Buchsbaum is a Denver-based freelance writer and photographer specializing in industrial subjects. He can be reached through his Web site at www.lmbphotography.com or by phone at 303-746-8172.