Valley fills, sludge spills,
flood chills and judge thrills

by Vivian Stockman

There we were, going about our business, pointing out to as many people as possible that several aspects of mountaintop removal coal mining are illegal, as well as utterly devastating to our forested mountains, streams, mountain culture and our futures.

As usual, for a couple of decades, and up until early May, most valley fills at mountaintop removal operations were illegal, but the U.S. Army Corps of Engineers continued to permit them anyway.

Yup, everything was just like usual. Late Thursday, May 2, another round of deadly floods hit southern West Virginia, leaving nine dead, hundreds homeless, schools battered, and roads and bridges pummeled – so far, an estimated $70 million in damage.

Several towns in McDowell County were wiped off the map. Again, many residents said they believe the floods were worsened because mountaintop removal and essentially unregulated timbering denude huge swaths of forests. These folks didn’t need to wait on the latest study to know that a devegetated, mountain-scalped, valley-filled landscape doesn’t absorb rain runoff the way a lush temperate forest does.

Weren’t the national forests here established in the mid-1900s after people connected the dots between heavy flooding and heavy deforestation? (By mid-June, the WV Department of Environmental Protection was under fire for blacking-out key information in a study of last July’s floods, where the final damage bill was over $190 million. The study says, in part, that mining and timbering can increase runoff by up to 21 percent.)

Yup, it was same old, same old. Early Friday, May 3, the heavy rains sent 5,000 gallons a minute of sludge (including water, coal fines and the chemicals used in treating coal for market) spewing out of a coal waste impoundment near Gary, McDowell Co., WV, into the Tug River (the third major sludge spill in as many years for the battered river). All told, the DEP estimates "tens of millions" of gallons escaped. DEP warned downstream residents that the entire dam could collapse with "catastrophic" results.

Since 1999, the DEP issued at least 26 environmental violations for this impoundment, but the companies operating the impoundment took no remedial action.

DEP could have, and obviously should have, shut down the impoundment after just two violations in one year. (Newsflash: On June 11, a line leading to an Arch Coal impoundment, at their "showcase" Hobet 21 mountaintop removal site leaked 25,000 gallons of slurry into a tributary of the Little Coal River.)

Then, at 4:30 p.m. on Friday, May 3, Bush, Inc. illegally changed a rule within the Clean Water Act, thus legalizing valley fills. Bush made this change, despite hundreds of calls and letters from members of OVEC, and other local and national groups, asking his Environmental Protection Agency appointees not to make the change. He ignored a bipartisan letter from 57 U.S. Representatives asking him not to make the change. He ignored the Senate Environment and Public Works Committee request that he not act until after a Congressional hearing on the change.

He ignored everybody but his friends and funders, the Power-Polluters. Not only does his rule change give a big fat green light to coal companies wanting to bury even more streams with even more rubble from our former mountains, but this rule change also says, "Just Dump It In The Waters!" to polluters nationwide.

Folks who care about the future of life on earth were worried sick about the implications for one of our most precious resources – water. We were also worried about another precious resource that seems to be slipping away – democracy. We have hope that a legal challenge to Bush’s rule change could be filed and would most likely prevail. So far, there hasn’t been an immediate need for that challenge, thanks to U.S. District Court Judge Charles H. Haden II, the bravest man alive.

On May 8, Haden publicly spanked Bush by reiterating his 1999 ruling (overturned on a jurisdictional question) that most valley fills at mountaintop removal are indeed illegal, and that, ahem, Mr. Bush, only Congress can rewrite the laws.

All this news focused the national spotlight on West Virginia and Kentucky. Newspaper editorials railed against Bush’s incredulous act and its potential impact on the entire country. In the midst of all this, we also learned from a Freedom of Information Act request by Charleston Gazette reporter Ken Ward, Jr., that Bush, Inc., is attempting to hijack the long overdue environmental impact statement (EIS) on mountaintop removal. Instead of bringing to light the detailed information in the as-yet-unpublished EIS, such as the fact that future mountaintop removal and timbering could obliterate about 1 million acres of our lush, biologically diverse forests, Bush wants to use the EIS as a vehicle to provide a more streamlined MTR permitting process! (Be sure to check out the special EIS section on-line. So far, you can’t read the EIS anywhere else. Help keep independent newspapers alive – subscribe to this paper!)

In 1999, after the first time Haden said most valley fills are clearly illegal under the Clean Water Act, the coal industry and its government friends did everything they could to overturn the ruling. They did not succeed. This time, Bush tried to anticipate the judge and changed the law himself.

Years of organizing and awareness-raising by groups like OVEC are paying off. We have more friends than ever in Congress (though we still can’t put the West Virginia and Kentucky delegations entirely into the category of "friends," to put it nicely) who are apparently appalled at what is happening here and want to do all they can to stop the insanity. And, we have an ever-growing coalition of local and national groups committed to ending mountain massacre.