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Coal Mining: Black Diamonds
and Black Holes
The beauty of the ancient
mountians fails to disclose an inner time capsule: a rich
abundance of coal, oil, and natural gas, all of which
have been extracted at great profit, still leaving rich
reserves yet to be tapped.
Huge coal reserves.
The western two-thirds of West Virginia occupy the greatest
bituminous coal field on earth, the Appalachian
Coal Field, which extends from northern Pennsylvania
to central Alabama.The state's coal field contains hundreds
of seams of coal varying in thickness from as thin as a
few inches to as thick as ten feet or more. Some seams
are easy to view in road cuts when traveling on major highways.
Many of the thick seams and easily accessible seams are
"mined out," as the locals say. The consequence
has been more destructive mining techniques since
the late 1980s.
Coal. Coal is a rock
composed of many minerals, the main one being carbon. West
Virginia has 117 different coal seams, 65 of which are being
mined today. Although estimates vary, perhaps there are
50 billion tons of minable coal reserves remaining.
Sulfur associated with coal
can react chemically with other elements and produce sulfur
dioxide and sulfuric acid. The most desirable low-sulfur
coal is in the steep-hilled mountains of southern West Virginia.
Two coal fields. There
are two coal fields in the state. The northern coal field
traditionally produced mostly "steam" coal for
generating electricity. The northern field has fewer minable
coal beds. Its coal has higher sulfur content, higher ash
content, and lower heating value. Northern coal is out of
favor primarily due to its high sulfur content.
The most desirable low-sulfur
coal is the southern coal field. Traditionally "metalurgical"
coal, called "met" coal, has been mined to make
steel. The southern coal field has more mineral coal beds.
Its coal has lower sulfur content, lower ash content, and
higher heating value. Now much of this coal is used to generate
electricity, in an effort to comply with air quality standards.
Coal is more than a rock,
though. In the labyrinth that is southern West Virginia,
coal mining spawned its own subculture. Books
and movies describe what transpired. The struggle of coal
miners to unionize the state's southern coal fields is grandly
depicted in John Sayles' Matewan, a fine, rough-and-tumble
movie starring Chris Cooper and James Earl Jones.
Strip
mining. Strip mining of coal has been a scourge
to West Virginia mountains since the days of World War II
when reclamation of strip-mined land was non-existent or
minimal. The result: ugly, unreclaimed, scarred mountains.
Abandoned
coal mines. West Virginia by far has the most abandoned
coal mines of any state,
1,629 as of fiscal year 1997, requiring future expenditures
of more than half a billion dollars to reclaim.
Reclamation of pre-1977
[pre-SMCRA] abandoned coal mines is paid for by a per-ton
fee upon coal being produced, which fee Congress may or
may not choose to extend in the future. Given current
federal funding limitations and a future cutoff of fees
flowing into the federal Abandoned Mine Reclamation Trust
Fund, decades will be needed to reclaim these mine
sites. A recurring funding issue is the unwillingness
of the federal government to spend a sizeable portion of
the trust fund; rather, the money sits there to help balance
the federal budget.
The enforcement square.
Enforcement of environmental statutes and implementing regulations
depends upon four sides. Congress and legislatures create
and alter statutes and review regulations. Agencies execute
laws and create rules and regulations. Courts interpret
laws. Citizens can influence the other three sides and can
enforce laws through citizens' lawsuits.
Citizen power. Under
the federal Surface Mining and Reclamation Act of 1977 [SMCRA],
citizens have a crucial role in keeping regulatory agencies
honest and on-the-ball. SMCRA's citizen suit provision is
a powerful enforcement tool. Those who favor the status
quo, like the plunderers of ancient empires, are scared
of powers exercised by ordinary citizens. When united in
environmental groups, such as OVEC, citizens keep democracy
alive.
Yet, state regulators use
a legal tactic in attempting to disempower citizens from
exercising their SMCRA right to sue to enforce the law.
The state argues that the citizen suit really is based on
state law and is prohibited by the Eleventh Amendment of
the U.S. Constitution. There are federal judges and justices
who wish to shrink federal power and who may buy this argument.
One successful citizens'
effort to enforce the law to reclaim strip-mined mountains
is told below.
Performance bonds.
For post-1977 abandoned coal mines a forward-looking
program of regulation comes into play. Under SMCRA a permit
is required to surface-mine coal. The permit applicant is
required to file a performance bond "sufficient"
to assure completion of the reclamation plan (by the regulatory
authority upon forfeiture).
Under primacy [see below]
the state administers the bonding program which is required
to meet the purposes of SMCRA. The federal agency --OSM,
approves the state's alternative bonding program. The program
must assure that there is sufficient money to complete reclamation.
30 CFR sec. 800.11(e).
West Virginia has a two-tier
alternative bonding system. The first tier
requires applicants to post a site-specific bond of $5,000
per disturbed acre. Prior to June 2001 the amount was $1,000
- $5,000, and the Legislature set the cap. The second tier
creates a bond pool -- the Special Reclamation Fund, financed
by a 3-cents-per-ton fee imposed on all active operators.
The Legislature refuses to increase the tonnage fee. The
first tier is often inadequate to reclaim damaged lands.
The second tier is insolvent, to the tune of hundreds
of millions of dollars of unfunded liability.
The result is an ever-growing number of partially reclaimed,
or unreclaimed, abandoned strip mines.
The primary reason for this
debacle is WVDEP's failure to require adequate bonding.
That is, bonds set by WVDEP are too small to reclaim the
old mines, particularly acid mine drainage. Historically
WVDEP asserted that Fund monies are not required to be used
for AMD clean-up. The agency's practice spawned a lawsuit
by the West Virginia Highlands Conservancy against OSM and
WVDEP [SDWV civil action no. 2:00-1062]. WVDEP admitted
the gross inadequacy of the state's bonding system.
In April 2001 federal district
court judge Charles Haden recognized WVDEP's bonding system
for what is was: an abysmal failure. He declared thatt "the
West Virginia alternative bonding system is superseded by
the federal bonding program." Litigation
continues.
For at least a decade OSM
has urged WVDEP to fix the bonding system and has threatened
takeover. However, th status quo has prevailed. Nobody wants
to accept legal responsibility for complying with the law!
In an August 2001 opinion Judge Haden condemned the "climate
of lawlessness" created by regulators, politicians,
and coal operators. Surely smoke can be seen from the
pages of that judicial decision!
Quite simply, OSM doesn't
want the massive headache of running WVDEP's bonding program.
OSM has given the state a deadline to fix the mess: 45 days
after the close of the 2002 legislative session. Judge Haden
will keep a watchful eye open. In August 2001 the state
agreed with the coal industry to raise the per-ton reclamation
fee to 14 cents through 2005 and back to 7 cents thereafter.
Politics in the mountains.
Regulation of strip mining of coal has an interesting political
history in West Virginia.
When a young and idealistic
Jay Rockefeller challenged incumbent Arch Moore for the
governorship in 1972, strip mining was a hot political issue.
Public discussion centered around whether it would be banned.
Jay basically said yes and Arch said no. Billboards and
commercials caught the eyes of the electorate. The pro-strip
mining forces raised the specter of lost jobs, a time-honored
scare tactic.
In the end, as a leading
politician of the day commented, Jay lost due to the "three
Ms - Moore, Money, and Mining." Moore was popular,
Jay wouldn't spend his fortune so as not to appear to be
buying the election, and strip mining was a divisive issue.
Nevertheless, early 1970s
political activism in West Virginia resulted in a
statewide ban of strip mining in non-producing counties
and stimulated the creation of new federal law.
West Virginia was not alone
in regulating strip mining of coal. In fact, Pennsylvania
led the way in 1945 and its statutory scheme continually
evolved.
Progress in reigning in
the abuses of strip mining of coal was slow because the
industry resisted regulation. Failure to impose mining
and reclamation standards then meant greater profits
for coal companies and greater costs to ordinary citizens
now. Today's consumers ultimately will pay the
half-billion dollar reclamation bill.
Make no mistake about it,
the coal industry is a tough guy accustomed to getting its
way through its political friends. Witness President
Gerald Ford's two-time veto in 1974 and 1975 of the first
comprehensive federal statute governing strip mining of
coal on privately owned lands. In 1976, with Ford's
defeat, came a new president and a renewed opportunity,
and President Jimmy Carter made the surface mining bill
a high priority.
SMCRA. Under the federal
Surface Mining Control and Reclamation Act of 1977
(SMCRA), [30 U.S. Code sec. 1201 et. seq] mined lands are
to be returned to their "approximate original
contour," eliminating the infamous L-shaped
bench and highwall (by turning the L into a right triangle).
After enactment of the statute reclamation improved dramatically,
consistent with the federal statute's requirement of restored
post-mining land use, but the scale of strip mining grew.
Anyone who rides in a
small airplane for the first time over the southern
West Virginia coalfields will see mile after mile of ugly,
scalped mountains. It would be like seeing in the 1960s
one of the mop-haired Beatles with a skin-head coiffure
-- a bizarre sight. In the mining process hundreds of thousands
of acres of forests have been skinned and lost.
While coal mining has provided
well-paying jobs, it has destroyed much, too much, of
every mountaineer's principal blessing: majestic mountains.
To see diagrams of different types of coal mining you can
access the following web site: http://www.uky.edu/...
Primacy. The federal statute
set up an approval process by which states could assume
"primary regulatory authority"- known as "primacy"-
over strip mining by carrying out the purposes of the federal
statute. West Virginia's statute, which parrots the language
of SMCRA, is the 1994 Surface Coal Mining and Reclamation
Act [W. Va. Code ch. 22, art. 3].
SMCRA establishes a program
of cooperative federalism. States, in accord with federal
minimum standards and subject to federal agency oversight,
administer their own regulatory programs.
The state's Division of Environmental
Protection (WVDEP or DEP), including its
Office of Mining and Reclamation, has full authority to
administer the environmental requirements of the federal
statute. To this end the state has adopted complementary
regulations: Title 38 of Code of State Rules (CSR).
The federal Office of Surface Mining's (OSM),
including its Charleston, West Virginia, field office, exercises
oversight authority of the state agency's decisions.
Little money, little enforcement.
Unfortunately OSM has received little support from Congress
in recent years. Likewise, WVDEP has been grossly underfunded
and understaffed for years. Little money means little enforcement.
As long ago as 1991, OSM threatened to take over WVDEP's
approved state program because of inadequate staffing.
In June 2000, to avoid
federal takeover of the state program, U.S. Senator
Byrd was able to garner $9.8 million, including $3.6 for
hiring additional inspectors and other personnel. In July
2000 the West Virginia Highlands Conservancy served the
OSM director with a notice threatening a lawsuit to compel
OSM to take over the WVDEP program. To save his agency,
Governor Underwood found a few million dollars in his contingency
fund in September 2000.
Inadequate staffing remains
a serious problem for WVDEP.
OSM annual state program
oversight reports are at: http://www.osmre.gov/...
These reports provide a big-picture view of coal mining.
Last updated on Tuesday, September 4, 2001
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