This news story originally provided by The State Journal

11/4/03

Old Mining Problems Resurface
Another Mountaintop Lawsuit Creates New Dilemmas for Coal Industry

By JULIET A. TERRY
jterry@statejournal.com 

Three environmental groups are suing the U.S. Army Corps of Engineers Huntington District for misusing a federal mining permit program, but the lawsuit may be precluded by a 1998 settlement agreement reached between an environmental group and the Corps.

The coal industry believes Joe Lovett, who represented the West Virginia Highlands Conservancy in a mountaintop-mining lawsuit that led to the settlement, is pursuing his latest legal challenge in violation of the agreement reached five years ago.

But Lovett said it wasn't his agreement. The Corps and the Highlands Conservancy reached a settlement. Lovett is representing different clients now in the lawsuit — the Ohio Valley Environmental Coalition, the Coal River Mountain Watch and the Natural Resources Defense Council.

The groups want to force the Corps to issue only individual permits for mining operations, which take longer than a more general nationwide permit program the environmentalists believe the Corps is not implementing correctly. The goal? Fewer mountaintop removal mining projects.

Lovett: Agreement Not a Factor

In two prior lawsuits over mountaintop mining, Lovett prevailed in the U.S. District Court for the Southern District of West Virginia. Judge Charles H. Haden II issuing rulings that would curb mountaintop removal and valley fill in mining operations, but the U.S. Fourth Circuit of Appeals reversed Haden in both cases.

In the first lawsuit, Lovett represented the Highlands Conservancy, an environmental group that challenged the permitting process associated with mountaintop mining projects. That case ended with a binding settlement agreement, which contained a provision stating the parties agreed not to challenge the Corps' authority under the Clean Water Act to regulate the discharge of surface mining spoil.

In his latest lawsuit, Lovett is challenging the Nationwide Permit 21, a general permit issued under the Clean Water Act for the disposal of waste rock, dirt and other mining byproducts — a kind of permit the coal industry believes falls under the 1998 agreement.

Robert McLuskey, an attorney with Jackson Kelly PLLC who represents several major coal companies, said the 1998 settlement was brought up during the second mountaintop mining case and could be raised in the newest case.

Lovett said the Highlands Conservancy reached the agreement, and the group was not a plaintiff in the other lawsuits. Haden agreed with Lovett that the agreement was reached with different clients and was not binding to actions brought by other plaintiffs.

In the newest lawsuit, Lovett makes the same argument that plaintiffs are different. He added that the Nationwide Permit 21 program expired and had to be reissued last year by the federal government. He also believes the Bush administration has failed to implement portions of the settlement, and he hopes to bring those perceived shortcomings to light.

"Clearly, the Corps has not lived up to its obligations and needs to stop issuing these 'rubber stamp' permits," he said.

Steve Wright, public information officer with the Huntington Corps, said he could not comment on whether the 1998 settlement could play a role in the newest lawsuit. The Corps' defense is provided by the U.S. Department of Justice, not lawyers within the Corps.

Wright said the Corps is not an advocate for anyone even though it is the defendant.

"We administer programs based upon the law and court decisions, as well as our internal administrative decisions," Wright said.

Third Time's a Charm?

The coal industry sees Lovett's latest lawsuit as another chance to advance his own agenda.

"This is an example of, 'Let's go find another client and bring another lawsuit to try and bring West Virginia to its knees and put the mining industry out of business since I didn't get the right answer from the Fourth Circuit,'" said Bill Raney, president of the West Virginia Coal Association.

"His (Lovett's) motive clearly is to put the industry out of business in West Virginia. And for him to say otherwise, he's not being completely above board," Raney said.

But Lovett believes Raney is giving him too much power.

"I don't have the ability to run the coal industry out of business," Lovett said. "Any industry should be forced to comply with the law. Any industry would operate differently if there were no regulations."

Raney said the coal mining permit process is finally back on track after the Fourth Circuit reversed Haden a second time, but a new legal challenge throws the process back into confusion.

"Each time rules are changed companies have to change their applications to conform to the new rules. That's a tremendous expense," Raney explained. "Some permits have been strung out for three or four years. A delay like that changes the whole complexion of an operation. We've got miners laid off, waiting for permits to be issued."

Raney believes Lovett will not stop suing over mountaintop mining "until he finds a court willing to stop what he wants to stop, so he will make it impossible for coal companies to invest in West Virginia."

Differing Views

But Lovett believes mountaintop mining has devastated southern West Virginia, and coal miners are out of work because coal companies are becoming more mechanized and need fewer workers, not because legal challenges are discouraging investment in West Virginia.

McLuskey said he sees Lovett as "a true believer" determined to advance the cause of environmentalists.

Lovett agrees.

"I do believe mountaintop removal is not good for West Virginia. That's why I work to bring these suits," Lovett said. "This coal is going to be mined no matter what because it's good quality coal. There are laws passed by Congress (to regulate the industry) and now we are the villains because we want coal companies to comply with them."

The newest lawsuit will go before Judge Joseph Robert Goodwin. A member of the district court clerk's office said judges are assigned cases randomly by a computer system. The court tries to keep related cases before the same judge, but case assignments depend on the amount of information entered into the selection system.

This news story originally provided by AP and The Daily Mail

11/4/03

Magistrate orders Massey to pay bonuses for reporting spills 

By MARTHA BRYSON HODEL 
Associated Press Writer

CHARLESTON, W.Va. (AP) -- A federal magistrate ordered Independence Coal Co. to pay a bonus of a day's pay to any employee who is the first to report future blackwater spills from the Boone County mine.

U.S. Magistrate Judge Mary Stanley imposed the rule Tuesday as an additional condition of probation for the operating unit of Massey Energy Co., based in Richmond, Va.

Independence Coal has had at least three blackwater spills since it was sentenced to five years of probation in March, Stanley said, and each spill was reported to the state Department of Environmental Protection by someone other than a coal company employee.

"There have been employees working very close to the spills and acting as there is nothing wrong,'' Stanley said.

"Each time it has been reported by someone offsite. Maybe those people have a bone to pick, I don't know, but this has got to stop,'' she said.

Other changes in the terms of probation ordered by Stanley on Tuesday include an accelerated schedule for an initial environmental audit, and an order for environmental audits to be completed every 12 months thereafter.

William Powell, a lawyer for Independence Coal, said the company needs time to implement the changes that resulted from the sentence ordered by Stanley in March.

He said employees had previously been ordered to report spills to their immediate supervisors, rather than to the DEP hot line, because the individual answering the call often needs more information than is available to a rank-and-file employee.

Stanley said the post-sentencing spills "each appeared to be the result of someone not thinking well, and not interested in protecting the environment.

"The court's interest, as it is with every company and person on probation ... , is to stop the illegal action.''

She also observed that the DEP recently filed lawsuits against Independence Coal and two other Massey subsidiaries, Omar Mining Co. in Boone County and Marfork Coal Co. in Raleigh County.

DEP Secretary Stephanie R. Timmermeyer had called the company's violations "egregious,'' and said her agency "is committed to utilizing all the operations available to deter operations who persistently pollute the waters of the state.''

The lawsuits are based on patterns of violations that occurred during 2001 and 2002, including several episodes of blackwater spills into several tributaries of the Coal River.

This story originally provided by The Charleston Gazette

11/6/03

Sierra Club event to feature 'The Appalachians' producer

The Sierra Club's local chapter will host an event at 7 p.m. today that features Mari-Lynn Evans, executive producer of the PBS documentary, "The Appalachians," and area mountaintop removal activists.

The event will be held in Geary Student Union's third-floor ballroom at the University of Charleston.

Evans will discuss the documentary and will screen excerpts. Janet Fout of the Ohio Valley Environmental Coalition; Judy Bonds and Freda Williams of Coal River Mountain Watch; and Larry Gibson, proprietor of Kayford Mountain, will discuss what moved them to act against mountaintop removal.

"The Appalachians," a four-hour documentary to air on PBS this spring, spans Appalachian history from pre-European times to the current predominance and legacy of extractive industries in the state. Naomi Judd narrates the film.

A book, compact disc and educational curriculum will also be released in 2004 in conjunction with the documentary. Artists contributing to the project include Johnny Cash, Loretta Lynn, Dolly Parton, Kathy Mattea and Ralph Stanley.

This news story originally provided by The NY Times

11/9/03

Mine Safety Official Critical of Policies Faces Firing 

By JAMES DAO WASHINGTON

The Bush administration has notified a mine safety official who has sharply criticized federal mining policies that it intends to fire him, according to documents and the official's lawyers.

The official, Jack Spadaro, the superintendent of the National Mine Health and Safety Academy in Beckley, W.Va., has been an outspoken critic of a federal investigation into a huge spill of coal sludge in eastern Kentucky three years ago. The accident, at the Martin County Coal Company, is considered one of the biggest environmental disasters in the Appalachian region.

Mr. Spadaro accused political appointees in the Mine Safety and Health Administration of cutting the investigation short, playing down the coal company's culpability and not holding federal regulators accountable for weak oversight. He was a member of the team investigating the spill before he resigned in protest in 2001.

Mr. Spadaro has also raised questions about no-bid contracts that he contends were awarded to friends and former business associates of David D. Lauriski, the assistant secretary of labor for mine safety and health, and other senior mine safety officials. His complaints led to an investigation by the Department of Labor's inspector general.

The dispute has become a flashpoint between the Bush administration and critics of its mining policies, who contend the administration has tried to weaken environmental and safety regulations to help big coal companies that contribute heavily to the Republican Party. Mr. Spadaro's firing, the critics contend, is retribution for his outspokenness.

"I would have to say flat out that Jack would not be in the spot he's in if he had not been a whistle-blower," said Joseph Main, the administrator of health and safety for the United Mine Workers Union.

Rodney Brown, a spokesman for the mine safety and health administration, said on Friday that the agency would not comment on a personnel matter. But federal officials have in the past said that the Martin County investigation was tough and thorough, and denied any improprieties with the no-bid contracts.

In a 10-page complaint sent to Mr. Spadaro on Oct. 2, mine safety officials accused him of abusing his authority, failing to follow orders and proper procedures and misusing a government credit card by taking unauthorized cash advances that cost the government $22.60 in bank fees.

"I have considered your 26 years of service, recent satisfactory performance ratings, and the fact that you have had no prior disciplinary action taken against you in determining the level of discipline to propose," a senior mining official, Frank Schwamberger, wrote in the complaint. "However, these factors do not outweigh the seriousness of your actions."

The complaint says that Mr. Spadaro can be terminated at any time 30 days after its receipt.

Mr. Spadaro's lawyer, Jason E. Huber, argued in a response that the complaints, even if proved, were too trivial to justify firing.

Mr. Huber also said that several of the complaints against Mr. Spadaro involved labor-management disputes that had been resolved through grievance procedures. And he cited newspaper reports that dozens of other mine agency officials had used their government cards to make personal purchases without repaying the government. He said Mr. Spadaro had repaid his advances.

"It is readily apparent that Mr. Spadaro's proposed termination is not a result of meritorious complaints regarding how Mr. Spadaro dispatched his duties," Mr. Huber wrote, "but is rather the Department of Labor, Secretary Elaine L. Chao, Senator Mitch McConnell and the Bush administration's retaliation against Mr. Spadaro for whistle-blowing activities."

Ms. Chao as secretary of labor oversees the mine safety agency. Senator McConnell, Republican of Kentucky, is her husband. Mr. Spadaro has asserted that Mr. McConnell has tried to protect Martin County Coal and its parent, the Massey Energy Company, because they are major campaign contributors.

A spokesman for Mr. McConnell declined to comment.

The Martin County spill occurred on Oct. 11, 2000, when a portion of a huge lagoon of coal slurry - a thick black byproduct of the processing of coal from strip mines - broke through the earth into an abandoned underground mine.

More than 300 million gallons of the black wastewater spewed through the mine and into local streams, killing hundreds of thousands of fish, flooding homes, polluting wells and blackening waterways all along the Kentucky-West Virginia border.

The spill was twice as large as its biggest forerunner, in Buffalo Creek, W.Va., more than 30 years ago, which killed 125 people. The Martin County spill caused no casualties, mainly because it poured into two separate hollows, diminishing its impact.

The panel that investigated the spill found that the coal company and federal regulators had been aware of potential problems at the slurry impoundment for years, Mr. Spadaro and other panel members said.

For example, after a similar slurry spill at Martin County Coal in 1994, a federal mining engineer recommended nine measures to bolster the slurry lagoon. But federal regulators allowed the company to expand the impoundment, which at the time of the spill contained 2.2 billion gallons, without completing the safety measures, panel members said.

An engineer for the coal company also told investigators that the company was aware years ago that the natural barrier separating the impoundment from the abandoned mine was as thin as 15 feet, less than what was required by law. Investigators said the company did not take action to strengthen the barrier.

Mr. Spadaro and some other panel members said they wanted to issue eight violations against Massey Energy, impose heavy fines and hold federal regulators accountable for inadequate oversight. But the final report recommended only two violations, carrying total fines of $110,000.

After resigning from the panel, Mr. Spadaro filed a complaint with the inspector general asserting that senior mine safety officials, including Mr. Lauriski, had interfered with the investigation and tried to punish him for refusing to sign the report.

The inspector general's report, released in January, concluded that while "some retaliatory events" against Mr. Spadaro "may have occurred," they were not related to his role in the investigation.

A federal grand jury in Kentucky is now looking into possible criminal charges relating to the spill. Massey Energy has declined to comment.

Mr. Spadaro was placed on administrative leave from his $108,000 a year job in June when the mine safety agency opened an investigation of his management of the academy.

In the tiny Martin County village of Inez, which was hardest hit by the spill, slurry still bubbles up in creek beds on rainy days. Some homeowners have received monetary settlements from Massey Energy to cover damages caused by the sludge. But many remain bitter, saying it was just by chance that the 2000 accident was not as deadly as Buffalo Creek.

"It's changed my view of the company," said Glenn Cornette, a 68-year-old retired miner whose home on Coldwater Creek was one of the first hit by the wave of sludge. "They just lied to me so much."

Nina McCoy, a biology teacher at the local high school, said many people in this low-income hamlet now bought bottled water because they believed that the slurry had poisoned their water supply. Slurry contains heavy metals, but state officials have said the area's water is fine.

"I think people hold less against the company than they do against the agencies who are supposed to protect us," Mrs. McCoy said. "They knew that this things was going to bust. And yet they let it go."

This story originally provided by The Charleston Gazette

11/10/03

Mine academy official to be fired, report says

The Bush administration intends to fire the superintendent of the National Mine Health and Safety Academy in Beckley, according to a report Sunday in The New York Times.

In a 10-page complaint sent Oct. 2 to Jack Spadaro, his superiors accused him of “abusing his authority, failing to follow orders and proper procedures, and misusing a government credit card by taking unauthorized cash advances that cost the government $22.60 in bank fees,” according to the Times.

The complaint says Spadaro can be fired at any time 30 days after its receipt.

Spadaro’s lawyer, Jason Huber of Charleston, confirmed Sunday that Spadaro received the complaint from the U.S. Department of Labor, which runs the Mine Health Safety Administration. He said they have filed their response last week, and would appeal any firing.

Huber said Spadaro did nothing wrong and was targeted for investigation because he blew the whistle on alleged improper practices within the agency. He has a complaint pending with the federal Office of Special Counsel to investigate the alleged retaliation.

“Considering the nature of the investigation, I fully anticipate they’re going to terminate him,” he said.

Spadaro has publicly criticized how the Bush administration handled an investigation into the 300 million-gallon coal slurry spill three years ago in Martin County, Ky.

Environmental groups called the Martin County spill one of the largest environmental disasters in the Eastern United States. It blackened streams, killed fish and shut down water treatment plants in Martin County, as well as Mingo and Wayne counties in West Virginia.

In 2001, Spadaro resigned in protest from the team investigating the spill. He said Bush administration officials interfered with its investigation.

The U.S. Mine Safety and Health Administration fined Massey subsidiary Martin County Coal $110,000 for two safety violations discovered during its investigation of the impoundment failure. Spadaro pushed for more violations and heavier fines.

He also questioned no-bid contracts he says were given to friends of Assistant Secretary of Labor David Lauriski.

According to the Times, in the complaint against Spadaro, mining official Frank Schwamberger wrote, “I have considered your 26 years of service, recent satisfactory performance ratings, and the fact that you have no prior disciplinary action taken against you in determining the level of discipline to propose. However, these factors do not outweigh the seriousness of your actions.”

This story originally provided by AP and the Daily Mail

11/11/03

Mine safety agency says it is firing academy superintendent

By MARTHA BRYSON HODEL
Associated Press Writer

CHARLESTON, W.Va. (AP) -- The federal mine safety agency intends to fire the superintendent of its Mine Health and Safety Academy for abusing his authority in supervising employees.

The agency notified Jack Spadaro of its intent on Oct. 2. Last week, Spadaro's lawyer relayed a 46-page response to the agency's charges and a request for a stay to the federal Office of Special Counsel, suggesting the Mine Safety and Health Administration has "selectively targeted Mr. Spadaro.''

"Independent, objective witnesses and the documentary evidence ... establish that each and every allegation lodged against Mr. Spadaro is wholly without merit,'' lawyer Jason Huber said in a Nov. 6 letter to MSHA.

"If the department proceeds with his termination, Mr. Spadaro will use all available legal means to not only clear his good name but to expose the department's unlawful and retaliatory behavior,'' Huber wrote.

Spadaro contends his firing is retaliation for what he describes as "whistleblowing'' during MSHA's investigation into an October 2000 coal sludge disaster in Martin County, Ky.

The bottom fell out of Martin County Coal Co.'s coal waste pond, sending 300 million gallons of waste into the workings of an an old mine and then out into eastern Kentucky and southern West Virginia streams.

Spadaro was appointed to take part in the investigation but resigned a short time later. At the time, he said the report would be nothing more than "a whitewash'' because MSHA was not examining its own conduct in the episode. MSHA is one of several federal and state agencies that have a role in regulating coal waste impoundments.

Subsequently, Spadaro said he provided the Labor Department's inspector general with 20 documents to support his allegations that MSHA was at fault, including several MSHA memos that warned about the safety of the Martin County impoundment.

In its 10-page notice to Spadaro, the agency gives five reasons it decided to fire him: abuse of authority; failure to follow appropriate procedures; failure to follow supervisory instructions; failure to follow appropriate accident procedures; and unauthorized use of a government credit card.

Jeffrey Duncan, MSHA director of educational policy and development, was "concerned about the recent high number of labor relations issues arising out of the academy,'' according to the notice.

Duncan said several employees had complained about Spadaro's temper and continued abusive conduct toward employees, including causing one worker "to fear for his safety while near you,'' the notice stated.

Duncan said he told Spadaro on April 3 that he must inform the Human Resources Division immediately when any labor relations issue arise, but Spadaro failed to do so. In at least one case, the dispute had escalated into the filing of federal charges of unfair labor practices against the agency, to which Spadaro had replied on his own without the assistance of legal counsel, according to the notice.

This story originally provided by AP and the Lexington Herald-Leader

11/12/03

Environmentalists upset over mining official's firing

By Dylan T. Lovan
ASSOCIATED PRESS

LOUISVILLE - Environmental groups in Kentucky and West Virginia are upset over the apparent ouster of a longtime federal mining official who was critical of the government's handling of a devastating coal slurry spill in eastern Kentucky in 2000.

"It's horrifying to me that we have to fight our own government to save the environment. This is just an example of the power of King Coal," said Patty Wallace, a Louisa activist and former chairwoman of Kentuckians For The Commonwealth.

The Mine Safety and Health Administration is firing Jack Spadaro, the superintendent of its Mine Health and Safety Academy in Beckley, W.Va., claiming abuse of authority. The agency notified Spadaro in a complaint sent Oct. 2.

But those who know Spadaro and environmental activists who learned of him after the slurry spill in Inez say he was a victim of "trumped-up" charges.

"As far as we can tell, he's being persecuted for doing his job well," said Vivian Stockman, a member of the Ohio Valley Environmental Coalition, based in Huntington, W.Va. The group is active in mountaintop-removal issues.

Spadaro is being fired because of abuse of authority, failure to follow appropriate procedures, failure to follow supervisory instructions, failure to follow appropriate accident procedures, and unauthorized use of a government credit card, according to the complaint by the MSHA. A spokesman for the agency did not return calls seeking comment yesterday, a federal holiday. In its complaint to Spadaro, Jeffrey Duncan,-MSHA director of educational policy and development, wrote that he was "concerned about the recent high number of labor-relations issues arising out of the academy." Duncan said several employees had complained about Spadaro's temper.

"Sounds like trumped-up charges to me," said Stockman, who has known Spadaro for years, and spoke to him last week.

"He genuinely cared about miners and coalfield residents and was always trying to get the laws enforced," she said. "We think he's being fingered for actually trying to get the laws enforced."

Spadaro could not be reached for comment yesterday. He has contended that his firing is retaliation for what he describes as "whistle blowing" during MSHA's investigation into the Oct. 11, 2000, coal sludge disaster in Inez.

The devastating spill from a coal waste pond owned by Martin County Coal sent 300 million gallons of black gooey sludge into Eastern Kentucky and southern West Virginia streams.

"These creeks are still running black in Eastern Kentucky," said Perrin de Jong, coordinator of Kentucky Heartwood, which focuses on forestry and mining issues. He said the charges against Spadaro are so minor "that anyone in their right mind is not going to believe that that's why he's being fired."

Mick McCoy, a member of Kentuckians For The Commonwealth who lives in Inez, said the spill killed everything in Rockcastle creek near his home.

"One of these times, one of these sludge ponds is going to get loose and it's going to kill a lot of people," McCoy said. "And I just wonder how (government officials) are going to get the blood off their hands."

Spadaro was appointed to take part in the investigation of the Inez spill but resigned a short time later. At the time, he said the report would be nothing more than "a whitewash" because MSHA was not examining its own conduct in the episode.

Wallace said Spadaro's resignation from the investigation made him a whistle blower.

"Why would he take that position, knowing how strong the coal industry is? He probably knew what would happen, but it seems to me he tried to do what was right," Wallace said.

Martin County Coal's parent, Massey Energy, later agreed to pay $3.25 million to Kentucky in fines and penalties, $225,000 to the state Department of Fish and Wildlife and $110,000 to MSHA.

This news story originally provided by AP and The Daily Mail

11/13/03

Government considers re-defining Clean Water Act jurisdiction

By MARTHA BRYSON HODEL
Associated Press Writer

HUNTINGTON, W.Va. (AP) -- The Bush administration is proposing a rule change that opponents say would sharply restrict coverage of the Clean Water Act and make it easier for coal operators to win permits for valley fills.

The new rule, if adopted, would redefine "waters of the United States'' to include only those streams that are considered "traditional navigable waters'' and their nearest tributaries, according to Joan Mulhern, senior legislative counsel for EarthJustice, a public interest law firm based in Washington, D.C.

That could remove from protection more than a third of West Virginia's waterways. The proposed change has alarmed environmentalists and sparked protest from environmental agencies in 39 states, including West Virginia.

"This is a developer's dream, and the most egregious attack on the Clean Water Act in its 30-year history,'' said Betsy Otto, a spokeswoman for the American Rivers Coalition in Washington, D.C.

"It would give free rein to lots of destruction,'' she said.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers posted an "advance notice of proposed rule making'' in the Federal Register on January 15.

The notice sought public comment on what waters should fall under the jurisdiction of the Clean Water Act in light of a 2001 U.S. Supreme Court ruling in a case known as Solid Waste Agency of Northern Cook County vs. the U.S. Army Corps of Engineers. In legal parlance, the ruling has become known as the SWANCC (pronounced SWAN-see) decision.

Environmentalists contend that the agencies' proposed rule-making "goes way beyond the narrow ruling of 'SWANCC','' Otto said.

That case focused on whether the jurisdiction of the Clean Water Act extended to so-called "isolated'' waterways.

The subject of dispute was a one-time quarry that had over time filled with water and become a nesting ground for migratory birds. In its ruling, the U.S. Supreme Court concluded that the agencies could no longer claim Clean Water Act jurisdiction over a body of water simply because it is used by migratory birds.

At the same time it sought public comment, the Corps of Engineers released to its field staff a guidance memorandum that, according to Otto, immediately removed federal Clean Water protection from many waters long considered to fall under its jurisdiction.

Other environmentalists believe the change also would eliminate protection for so-called "intermittent'' streams, generally defined as those that flow for less than six months of the year. An estimated 35 percent of West Virginia's streams are considered intermittent.

Regulatory agencies from 42 states have commented on the proposal, Otto said. Of those, 39 states, including West Virginia, argued against any regulatory change. Only Alaska, Idaho and Nevada suggested the agencies proceed with the new rule.

Although the federal agencies apparently have been discussing the rule change internally for months, there was no public release of the language under debate until last week, when it surfaced in a four-page draft rule obtained by the Los Angeles Times.

The Corps of Engineers declined Wednesday to confirm the existence of the draft rule published by the Times.

However, employees of several regulatory agencies, speaking only on condition that they not be identified, acknowledged that copies of the Los Angeles Times article were being circulated among the agencies' staff.

Two West Virginia agencies objected to the proposed redefinition, the Division of Natural Resources on Feb. 26 and the Department of Environmental Protection on April 16. Copies of the letters were obtained Wednesday by The Associated Press.

"This letter is to express our concerns on what we feel is an unnecessary attempt to redefine the definition for waters of the U.S. based solely on the SWANCC ruling,'' said William D. Brannon, acting director of DEP's Division of Water and Waste Management.

"In no means should this court decision be taken beyond this intended ruling in such a manner that it would lead to a wholesale destruction of the definition in the Clean Water Act of either navigable waters or waters of the U.S.,'' Brannon said.

Curtis Taylor, chief of the DNR's wildlife resources section, also objected.

He urged the Corps and the EPA to "take the narrowest view'' of the SWANCC decision when redefining waterways under federal protection.

Taylor said that Clean Water Act jurisdiction "has been recognized even when the tributaries in question flow for a significant distance before reaching a navigable water or are several times removed from navigable waters.''

The Clean Water Act has been the basis of most legal challenges to the large-scale surface mining method known as mountaintop removal mining.

In order to make the method cost-effective, the leftover rock and dirt from above and between the coal seams, known as "overburden'' or "spoil,'' must be disposed of in nearby stream beds. That practice is known as "valley fill.''

In smaller scale surface mining, the spoil is returned to the mine site and regraded until the reclaimed terrain follows the approximately original contour of the land, which in southern West Virginia is usually steep hills separated by narrow valleys.

Mountaintop removal, once reclamation is complete, leaves a landscape that is level to gently rolling. But it erases the original water course and the habitat created by it.

This news story originally provided by AP and the Williamson Daily News

11/13/03

Environmental groups riled over MHSA mining official's ouster

By DYLAN T. LOVAN
Associated Press Writer

LOUISVILLE, Ky. (AP) - Environmental groups in Kentucky and West Virginia are upset over the apparent ouster of a longtime federal mining official who was critical of the government's handling of a devastating coal slurry spill in eastern Kentucky in 2000.

''It's horrifying to me that we have to fight our own government to save the environment. This is just an example of the power of King Coal,'' said Patty Wallace, a Louisa, Ky., activist and former chairwoman of Kentuckians For The Commonwealth.

The federal mine safety agency is firing Jack Spadaro, the superintendent of its Mine Health and Safety Academy, claiming abuse of authority. The agency notified Spadaro in a complaint sent on Oct. 2.

But those who know Spadaro and environmental activists who learned of him after the slurry spill in Inez, Ky., say he was a victim of ''trumped-up'' charges.

''As far as we can tell, he's being persecuted for doing his job well,'' said Vivian Stockman, a member of the Ohio Valley Environmental Coalition, based in Huntington, W.Va. The group is active in mountaintop removal issues.

Spadaro is being fired due to abuse of authority, failure to follow appropriate procedures, failure to follow supervisory instructions, failure to follow appropriate accident procedures and unauthorized use of a government credit card, according to the complaint by the Mine Safety and Health Administration.

A spokesman for the MHSA did not return calls seeking comment on Tuesday, a federal holiday. In its complaint to Spadaro, Jeffrey Duncan, MSHA director of educational policy and development, wrote that he was ''concerned about the recent high number of labor relations issues arising out of the academy.'' Duncan said several employees had complained about Spadaro's temper.

''Sounds like trumped-up charges to me,'' said Stockman, who has known Spadaro for years, and spoke to him last week.

''He genuinely cared about miners and coalfield residents and was always trying to get the laws enforced,'' she said. ''We think he's being fingered for actually trying to get the laws enforced.''

Spadaro has contended that his firing is retaliation for what he describes as ''whistleblowing'' during MSHA's investigation into the Oct. 11, 2000, coal sludge disaster in Inez.

Spadaro could not be reached for comment on Tuesday, a federal holiday.

The devastating spill from a coal waste pond owned by Martin County Coal sent 300 million gallons of black gooey sludge into eastern Kentucky and southern West Virginia streams.

''These creeks are still running black in eastern Kentucky,'' said Perrin de Jong, coordinator of Kentucky Heartwood, which focuses on forestry and mining issues. He said the charges against Spadaro are so minor ''that anyone in their right mind is not going to believe that that's why he's being fired.''

Mick McCoy, a member of Kentuckians For The Commonwealth who lives in Inez, said the spill killed everything in Rockcastle creek near his home.

''One of these times, one of these sludge ponds is going to get loose and it's going to kill a lot of people,'' McCoy said. ''And I just wonder how (government officials) are going to get the blood off their hands.''

Spadaro was appointed to take part in the investigation of the Inez spill but resigned a short time later. At the time, he said the report would be nothing more than ''a whitewash'' because MSHA was not examining its own conduct in the episode.

Wallace said Spadaro's resignation from the investigation made him a whistleblower.

''Why would he take that position, knowing how strong the coal industry is? He probably knew what would happen, but it seems to me he tried to do what was right,'' Wallace said.

Martin County Coal's parent, Massey Energy, later agreed to pay $3.25 million to Kentucky in fines and penalties, $225,000 to the state Department of Fish and Wildlife and $110,000 to MHSA.

© Copyright 2003 Williamson Daily News

11/17/03

Remembering Farmington 35 Years Later

Staff
Farmington

Thirty-five years later it doesn’t get any easier for those who remember the Farmington mine disaster.

A memorial service was held yesterday in Marion County. UMWA President Cecil Roberts and others paused to remember the lives of 78 coal miners who died in that explosion on November 20, 1968.

The tragedy spearheaded the 1969 Federal Coal Mine Health and Safety Act. There are now more regulations when it comes to measuring methane levels in underground mines.

A large crowd attended yesterday's ceremony including widows and friends of the 78 victims.

11/18/03

Spadaro

Congress probe needed?

ATTEMPTS to fire Jack Spadaro, superintendent of the National Mine Safety and Health Academy at Beckley, have become an international issue.

Two months ago, Vanity Fair magazine said he’s being ousted because he protested coal pollution cover-ups by the Bush administration.

This month, two more major news outlets focused on the case. They say the White House wants to destroy Spadaro because he exposed lenient treatment of a Massey subsidiary responsible for a giant 2000 coal sludge spill into Tug Fork River on West Virginia’s southern border.

“Dirty business: How Bush and his coal industry cronies are covering up one of the worst environmental disasters in U.S. history” — that’s the title of a long Spadaro report on the global Salon Web site.

As Gazette reporter Ken Ward Jr. has chronicled, Salon recounts that the Beckley engineer resigned in 2001 from a federal team investigating the Massey spill, and filed a complaint with the inspector general of the U.S. Labor Department. Spadaro alleged that the Bush administration was soft on Massey, a bankroller of Republican politicians.

Soon afterward, Washington officials began trying to remove him. First, he was accused of making an improper 82-cent phone call. When that charge failed, he was suspended again and told he’s being terminated for a $22.60 problem — another flimsy excuse for removal. Spadaro has filed for protection under the federal whistleblower law. The outcome is pending.

Last week, on National Public Radio’s “Living on Earth” program, Spadaro declared: “I’m being fired because I told the truth about the mine disaster and insisted that the agency responsible for investigating it hold the mining company accountable for its negligence.”

This month, The New York Times said the administration filed a 10-page dismissal action against Spadaro, accusing him of “abusing his authority, failing to follow orders and proper procedures, and misusing a government credit card by taking unauthorized cash advances that cost the government $22.60 in bank fees.”

That’s laughable. Obviously, the administration is using trivia to try to silence an engineer who spoke out against a pollution horror. We’ll bet that such minor matters wouldn’t result in action against any engineer favored by the White House.

What can be done about this injustice? Perhaps West Virginia’s Democratic members of Congress could demand a hearing into the sordid case. Somehow, the public record should spell out that the administration is protecting polluters.

This news story originally provided by The Register-Herald

DEP wants EPA to act on anti-degradation water rule

By Mannix Porterfield/REGISTER-HERALD REPORTER

CHARLESTON - It's up to the federal Environmental Protection Agency to act on altering seven points of contention in West Virginia's anti-degradation rule, an official told a legislative panel Tuesday.

Alyn Turner, head of the water and waste management division of the state Department of Environmental Protection, told Judiciary Subcommittee D she hopes the EPA will act before the year is out.

"The ball is effectively in their court," she said. "They have to take some affirmative action."

Passed by lawmakers after considerable debate, the rule came under challenge by the Ohio Valley Environmental Coalition, and a federal court held seven of its 13 specific points failed to pass muster.

In dispute are such provisions that classify the Lower Kanawha and Monongahela Rivers as Tier 1 waters; exemptions for publicly owned treatment facilities when they expand; exemptions from general permitting; future exemptions that gave the DEP some latitude; use of the word "generally" in Tier 2 waters; the ability to regard four particular pollutants differently; and a 20 percent cap in minimum previews.

Turner told lawmakers the DEP hopes to see the EPA act on the court ruling by amending the rule so it meets the court ruling before the holidays.

"But I don't know if we'll get there," she cautioned.

Since the court handed down its edict, Turner said, DEP has gathered all stakeholders for talks on how to resolve the conflict.

"We've started that dialogue," she said. "We hope in an expedient fashion we will have a rule."

Delegate Virginia Mahan, D-Summers, recalled the lengthy debate over the rule designed to protect West Virginia's waterways when lawmakers "heard from every conceivable special interest group."

Rather than give the entire rule an overhaul, Mahan said only the seven issues raised by the court should be examined.

"We just need to fix the positions ordered by the court," she added.

- E-mail: mporterfield@register-herald.com

This news story originally provided by AP and The Daily Mail

11/20/03

Some clashes as protesters gather near free trade talks in Miami; police blanket downtown

By MIKE SCHNEIDER Associated Press Writer

MIAMI (AP) -- Officers and a group of demonstrators clashed Thursday near the site of talks to create a free trade zone for North and South America. Police blanketed downtown, remembering trade-related riots in other cities.

Riot-clad officers used long batons to restrain several dozen protesters, some of whom wore surgical masks or bandannas across their mouths. Other demonstrators carried gas masks. Police estimated the number of protesters they clashed with at between 300 and 400.

Meanwhile, AFL-CIO organizers planned a noontime rally that they said should include more than 10,000 protesters against the proposed 34-nation Free Trade Area of the Americas. They pledged that it would be peaceful.

Officers were using their batons mostly to push back the militant protesters, but occasionally used them to strike demonstrators.

In a brief flare-up, gas that smelled like rotten eggs was fired by police. A protester scrambled forward and tossed back a canister. One protester stood in front of the officers waving an American flag.

"I think we're in good shape, right now,'' Police Chief John Timoney told WFOR-TV. "Obviously the most difficult task ... is to maintain calm and not to overreact.''

Protester Joshua Xander, 21, of Cincinnati, said the police are "totally doing what they feel necessary. We are doing what we think is necessary -- conflict of interests.'' He was tapping on an African drum.

On Wednesday, negotiators approved a draft text of a free trade pact, choosing a version that allows countries to opt out of more controversial clauses of the agreement. Trade ministers were to spend two days working to finish the text, which so far speaks in generalities.

U.S. Trade Representative Robert Zoellick denied that the United States was backing away from creating an agreement that would tear down all trade barriers from Alaska to Argentina, which was how the FTAA was originally conceived. He called the buffet comparison inaccurate.

"I look at it as a full-course dinner, but each country has to decide how much to eat with each course,'' he told business leaders.

Critics of free trade agreements say they take jobs from American workers, exploit workers elsewhere and lack safeguards such as environmental standards.

Near the hotel where the trade ministers were meeting Thursday, several hundred protesters gathered at the fence that blocked them from getting closer. They held colorful signs with slogans such as "Corporate Greed'' and "FTAA Contaminates Fish.''

Police had escalated their street presence because of violent demonstrations and vandalism at similar free trade meetings, including five days of riots during a 1999 World Trade Organization meeting in Seattle.

Parts of downtown Miami resembled a police state. Checkpoints with armed officers blocked pedestrians without proper credentials on several streets. Squad cars were on almost every block. Troopers searched vehicles before they could move on.

Business owners shuttered their facades.

"Everybody is scaring us. They say there's going to be trouble,'' said Sami Virani, who was placing plywood in the window of his shop Watch Time. "It's worst than a hurricane.''

On Wednesday, police arrested seven people in a vacant Miami mansion who were allegedly had crowbars, metal chains with locks on them, flammable materials, gas masks and leaflets protesting the trade talks. They were charged with burglary.

11/25/03

Rest of the story

Only full mine-spill report will end suspicion

Jack Spadaro isn't the only victim of the Bush administration's push to stifle dissent within the U.S. Mine Safety and Health Administration.

Taxpayers will pay, too.

Spadaro's appeal of his firing seems certain to succeed, though it could take years. The charges against him, if true, are trivial. And in evaluations his superiors praised his work as head of MSHA's training academy in Beckley, W. Va.

Spadaro, an engineer, says his firing is retaliation for his criticism of MSHA officials. He questioned their handling of the Martin County coal-waste spill investigation, their awarding no-bid contracts to friends and their handling of sexual harassment cases.

Spadaro accuses the Labor Department, Labor Secretary Elaine Chao and her husband, Kentucky Sen. Mitch McConnell, of retaliation. Spadaro speculates that McConnell's motive is protecting Massey Energy, owner of the the coal-waste impoundment that catastrophically failed Oct. 11, 2000. Massey is a regular contributor to Republicans.

In all likelihood, Spadaro will prevail with his whistleblower claim, and taxpayers will get stuck footing the bill for the flimsy case that Chao's underlings concocted against him.

As unfair and troubling as all this is, at least the safety of miners and coalfield residents is not being forgotten by everyone. Environmentalists and a United Mine Workers safety official have spoken out in Spadaro's defense.

The controversy around Spadaro's firing has been reported in The New York Times and on National Public Radio. It's drawing attention outside Appalachia to the dangers of coal-waste impoundments. It's a reminder of the environmental travesty that fouled 100 miles of waterways along the Kentucky-West Virginia border with sludge from a failed impoundment that should have been shut down after it broke six years before.

It has renewed attention to Spadaro's allegations of a coverup in the Martin County case and fueled interest in why the Labor Department's Inspector General censored half of its 25-page report on the coverup allegations.

In a recent Salon.com article, investigative journalist Phillip Babich, speculates, based on what MSHA sources told him, that the IG most likely redacted two revealing details:

First, MSHA brass pressured an employee to water down a memo that enumerated how the agency failed to follow its own recommendations after the 1994 spill.

Second, a second memo responding to the critical memo was fabricated and backdated. "If proven, either one of these allegations would have been grounds for obstruction of justice," reports Babich.

That should, at the very least, spur the Labor Department to release the rest of the IG's report. Otherwise, the public is bound to believe the worst.

11/28/03

IRS attorney claims politics in Synfuel Giveaway

By JOHN D. MCKINNON 28 Nov. 2003 Staff Reporter of THE WALL STREET JOURNAL
©2003 Wall Street Journal

WASHINGTON -- The Internal Revenue Service buckled under pressure from corporate lobbyists and sympathetic lawmakers when it abruptly dropped plans last month to crack down on an often-abused tax break involving synthetic fuel made from coal, an IRS lawyer says.

The IRS move cleared the way for synthetic-fuel producers, including big energy companies and others, to continue receiving billions of dollars in tax credits under a two-decade-old law designed to help reduce the nation's dependence on oil.

The so-called synfuel tax credit has cost the government an estimated $1 billion to $2 billion annually in recent years. This could grow to as much as $10 billion a year as the industry expands, said Bill Henck, an IRS attorney who worked on the synfuel-tax-credit issue.

The IRS denies that politics played any role in its decision last month. After announcing in June that it had placed the tax credit under review, the IRS said it concluded that industry players had complied with rules in place at the time investments were made. The IRS decision "was based on the facts and law from my perspective," said Emily Parker, the IRS acting chief counsel. "Clearly, this issue created economic uncertainty in the industry. Resolving this quickly was the right thing to do."

As the IRS investigated the tax credit through the summer, Washington lobbyists staged a four-month counterassault. Opponents targeted the IRS budget, seeking to deprive the agency of money for its review process. Lobbyists also pressured the new IRS commissioner and Treasury Secretary John Snow, and recruited home-state senators to help. Industry officials defend the tough tactics, saying they were necessary to stop IRS agents from effectively killing the tax credit by investigating it for years.

"To me, it smells to high heaven," Mr. Henck said. By continuing the tax break, companies have been given "the keys to the Treasury," he said.

Mr. Henck complained internally when IRS higher-ups blocked his strategy to go after companies' abuses of the credit as an improper tax shelter. In one e-mail, he criticized the IRS for caving in to companies who spray "Elmer's glue" on ordinary coal to make it look like a synthetic fuel. Mr. Henck, who had previously criticized other decisions by the agency, says he went public with his synfuel complaints in an interview with The Wall Street Journal after the IRS recently started auditing his own tax returns, a rare event these days. He fears political retribution.

The IRS wouldn't comment on Mr. Henck, citing rules against discussing individual taxpayers or IRS employees. "We routinely monitor employees to ensure they report and pay their taxes," an IRS spokesman said.

Former IRS Commissioner Donald Alexander, who battled White House political pressure during the Nixon era, says the IRS synfuel decision "raises questions" about political influence on the agency. "It would appear that IRS raised some reasonably substantial questions and that IRS dropped the questions ... simply because of the concerns about substantial investments that had been made [in synfuel plants]. That troubles me," Mr. Alexander said.

The synfuel tax credit was enacted in 1980 during the energy crisis to reward companies for creating alternatives to oil. The idea was to encourage production of highly refined solid fuels derived from coal. But the tax credit's provisions were so vague that firms won IRS approval to claim the credit even when their coal reprocessing added little -- or nothing -- to the fuel's performance.

To qualify, businesses had to show a "significant chemical change" in the coal. Companies have relied on laboratory tests to satisfy this requirement. But the standard has been so easy to meet that companies claimed tax credits for spraying or coating coal with substances from starch to diesel fuel, which is the sort of petroleum product synfuel was supposed to replace. In Appalachia, critics referred to the synfuel business as "spray and pray," the prayers being aimed at lenient IRS rulings.

IRS officials warned repeatedly during the 1990s that the credit was becoming a boondoggle. Twice the agency suspended granting new authorizations of the credit, including as recently as 2000-2001, but was beaten back by congressional allies of the synfuel lobby. Big electric utilities, including Raleigh, N.C.-based Progress Energy Inc., TECO Energy Inc. of Tampa, Fla., and Detroit's DTE Energy Co., began snapping up plants that produce synthetic fuel and claiming the credit. Insurance and financial companies have jumped in. Even hotel chain Marriott International Inc. has said in public disclosures that it is in the synthetic-fuel business.

The value of the tax credit is tied to the heat-producing potential of the fuel and the price of a barrel of oil. Currently a ton of synthetic fuel generates roughly $25 to $26 of tax credits. Mr. Henck, the IRS lawyer, said the tax credit will become more costly to the Treasury because many plants have unused capacity. By law, plants put in service after 1998 aren't eligible.

During audits, IRS agents had become convinced that many of the coal-derived synfuel products didn't meet the "significant chemical change" requirement after the agency's experts weren't able to duplicate the companies' laboratory tests. The agency's announcement in June that it was considering revoking tax-credit authorizations hurt share prices of companies that make extensive use of the credits.

At TECO, officials worried that the IRS probe could threaten a lucrative sale of the company's synfuel facilities. TECO lobbyists urged Rep. Harold Rogers, a Kentucky Republican, to offer legislation in July forbidding the IRS from spending any more money on its review. TECO owns a coal subsidiary in Kentucky. Mr. Rogers declined to comment. The amendment failed on a tie vote in a House committee.

Three weeks later, coal-state senators turned Treasury Secretary Snow's appearance at a hearing on another matter into an attack on the IRS synfuel investigation. The IRS "has created massive uncertainty, making it impossible for taxpayers to earn back their investments," complained Kentucky Republican Jim Bunning. Republican Sen. Richard Shelby of Alabama added: "We are also big coal producers ... and we share the same problems.” And Utah Republican Sen. Robert Bennett said: "We mine coal in Utah too."

As a result of industry pressure, the IRS staged an unusual "town hall" meeting in Houston on Aug. 14 for corporate officials to air complaints. Industry concerns grew after IRS agents told the gathering that the review of the synfuel tax credit could take months, if not years. They said IRS experts needed to do in-depth testing of each company's chemical processes.

One big issue: Whether the industry and IRS could agree on the laboratory test used by the IRS to determine whether there was a chemical change in the coal. "A number of people around here are going to be panicking," responded Todd Wallace, a Jones Day lawyer, according to a transcript of the meeting.

Helping to recruit lawmakers to crank up the pressure was lobbyist Kenneth Kies, a former director of the congressional Joint Committee on Taxation who currently heads a synfuel-producer coalition. A second coalition, led by lawyers at Hunton & Williams of Richmond, Va., also joined in the effort. A group of influential senators summoned IRS Commissioner Mark Everson for a meeting on Sept. 10 to urge the IRS to accelerate its review.

Around the same time, House members led by Rep. Jim McCrery, a Louisiana Republican who sits on the House committee that oversees the IRS, held a similar meeting with Ms. Parker, the IRS acting chief counsel, and the Treasury's top tax official, Pamela Olson. The House members went further, pressing the IRS to drop plans to crack down on the tax credit, officials who attended the meeting say.

"I thought it was unfair just to go through the same thing all over again," said Rep. McCrery, who said he had been assured that the issue was settled in 2001, when the IRS last addressed the tax-credit question.

The IRS sped up its inquiry, scheduling hearings on the claims of several synfuel producers. Ms. Parker and others at the IRS said the agency wasn't influenced by congressional complaints. She said the review accelerated soon after it was announced in June. But IRS spokesmen declined to provide specifics of the review process, citing taxpayer confidentiality rules.

In its decision last month to drop plans for a crackdown, the IRS issued a confusing set of statements. It said that after consulting experts at the National Institute for Standards and Technology, the IRS determined that laboratory test results used by synfuel companies to apply for tax credits were "scientifically valid." Still, the agency said that the chemical processes many of the companies used "do not produce the level of chemical change required" by the law.

In any case, the IRS in its latest ruling gave companies the green light to claim the tax break. The reason: The agency said that "many taxpayers and their investors have relied" on previous IRS rulings in making their investments. "Clearly we are exercising our discretion," Ms. Parker said. In response to subsequent questions, Ms. Parker added through a spokesman that the agency decided after its 2001 review of the tax credits to continue to approve them.

An IRS spokesman said the agency will continue to audit companies to be sure that synfuel plants qualify for the credit.