Unforseen. Nobody in
the mid-1970s envisioned the degree of mining-caused devastation
seen today in southern West Virginia. Ideas about mountaintop
removal were premised on what was known then: small-scale
mountaintop mining. What an unforeseen tragedy.
Social compact. The
enactment of SMCRA in 1977 produced a social compact
by imposing tough, mandatory "environmental protection
performance standards." Extraction of coal by
mountaintop-removal-and-valley-fill, allowable in limited
circumstances, is contingent upon restoring
the land to its approximate original contour and prior or
better uses, and not causing stream degradation.
Failures of enforcement abound for all of these requirements.
And the requirement of restoring land to approximate original
contour can be bypassed with a variance granted by
WVDEP, which the agency has done all too often.
AOC. OSM failed
to define "approximate original contour"
(AOC) and left implementation of this ambiguity to the states.
The result was no standards and enforcement was on-the-spot
subjective assessments by inspectors. OSM's May 1999
report on AOC and postmining land use found "there
was not much difference in the characteristics of mines
that had been granted AOC variances and those that were
supposed to return land to AOC." Indeed, AOC sites
"generated nearly as much excess spoil" [to be
dumped into valleys] "as sites with AOC variances."
AOC was originated to
eliminate benches and highwalls in 1970s-style strip mining
but is a deficient reclamation concept in mountaintop removal.
There are no highwalls left in mountaintop removal because
the entire mountaintop is blasted and dug away by huge draglines.
Belatedly, in March 1999,
OSM and WVDEP announced a plan to modify the permit review
process. Operators are to pile most of the broken rocks (spoil),
which they have blasted, onto what is left of the mountaintops.
Valleys will receive only "excess spoil" which
cannot be placed on the mountaintops because of rules controlling
stability, drainage, sediment control, access and maintenance
of the mined areas.
AOC and other reclamation
matters were part of the February 2000 settlement agreement
approved by U.S. District Court Judge Chzrles Haden in the
Bragg case. Yet, WVDEP's exempting pending permits
from complying with the AOC requirement and granting AOC
variances without sufficient justification are too common..
Reclamation? During "reclamation"
piles of rocks (with little dirt) on the flattened mountain
are sprayed with seeds (hydroseeding) and hay-mulching is
used. These techniques are useful in growing grasses,
which are sewn to prevent erosion, but are not tree-friendly.
Grasses compete with tree seedlings. Invasive, non-native
species of trees and plants predominate. Plants
and wildlife that require forest habitat disappear
and are replaced by those that inhabit grasslands.With native
trees gone their return would have to be by primary succession,
since the pre-disturbance soil is no more.
Lost for generations.
It is futile to expect to grow on "reclaimed"
decapitated mountains the extensive variety of native
hardwoods found in West Virginia. [See generally
"Forests" in this web site].
As if to underscore this
message, Division of Forestry Director Bill Maxey quit his
position on October 31, 1998. The November 1, 1998,
Charleston Gazette quoted him as saying, "I
think mountaintop removal is analogous to serious disease,
The interview gave other
insights from Maxey: 1. few mines are returned to
AOC; 2. most mines strip top soil and don't replace it;
3. the soil that is returned is covered with lime (and hydroseeded
with grasses) making the ground too alkaline for trees;
and 4. that soil is compacted and is too hard for tree planting.
"In other words, our valuable hardwood
forest is lost for the next 150 to 200 years,"
said Maxey. Without their natural habitat, hardwood
trees and associated plants, all manner of animals go elsewhere.
As part of the Bragg case's
settlement required environmental impact study, similar
comments were made by the federal agencies. The "natural
return of forests" on reclaimed mountaintop-removal
sites "occurs very slowly. Full restoration across
a large mine in such cases may not occur for hundreds
The problem here is not
the method of reclamation but is the technique of coal mining.
This Humpty Dumpty cannot be put together again.
Postmining land use.
Regarding postmining land use, a general
performance standard is that operators are to "restore
the land affected to a condition capable of supporting the
uses to which it was capable of supporting prior to any
mining or higher or better uses...."
[30 U. S. Code 1265(b)(2)].
Additional standards exist
when coal producers avoid the AOC requirement and flatten
our mountains. Operators are supposed to receive a variance
from WVDEP to bypass the AOC requirement. The social
compact dictates that the public gains something in post-mining
usage. There are two separate but similar SMCRA provisions
which define what producers must do to receive a permit
to decapitate the mountains. [30 U. S. Code secs.
1265(c) and 1265(e).]
The postmining land use
must be "industrial, commercial, agricultural, residential
or public facility (including recreational facilities)."
[Sec. 1265(c)(3)]. It must "constitute an equal
or better economic or public use" as
concluded after consultation with "land use planning
agencies...." [Sec. 1265(c)(3)(A)]. There
must be a "specific plan" with "appropriate
assurances" that the proposed postmining land use is
realistic. [[Sec. 1265(c)(3)(B)].
The seven indicators
of realistic usage may be summarized as:
compatible with adjacent land uses, obtainable according
to data regarding expected need and market, assured of investment
in public facilities, supported by public agency commitments,
having adequate private funding, being part of the reclamation
plan, and properly designed. A later requirement states
that "no damage shall be done to the natural watercourses."
West Virginia's OSM-approved program,
through state law (statutes and regulations), is supposed
to ensure that reclamation and post-mining land use requirements
are met. The state program's deficiencies were recognized
in OSM's 1998 oversight report and in its May 1999 report
on AOC and postmining land uses. What
actually has happened in postmining land use of decapitated
mountains is that most of them are flat pastures and rolling
hayfields in rural, isolated areas with poor infrastructure.
Why then do we need more
of these? There is no field of dreams here. Little
has been built and few industries will come. A major
defect in SMCRA's post-mining land use concept is reliance
upon coal producers to develop sound post-mining business
plans for mountaintop removal mines. Their expertise
is in mining coal, not in creating viable industrial parks,
recreational facilities, et cetera.
A 1999 West Virginia statute
created an Office of Coalfield Community Development within
the West Virginia Development Office to facilitate development
of mined lands.
The social compact has failed.
Why? WVDEP, with no formal review by OSM, routinely
has issued mountaintop removal permits without the required
postmining land use plans.
Instead, the most common
permit usage listed has been "fish and wildlife
usage," which is not an allowable SMCRA usage.
As of June 2000 OSM said that fish and wildlife habitat
reclamation generally is not allowed by law but, as ponds
and wetlands, may be allowable reclamation as part of a
public recreational facility.
post-mining land use is allowable but Congress did not "favor
less managed and low intensity activities such as grazing,
pastureland and the like."
And, in the Bragg
case settlement, approved by federal district court Judge
Haden, WVDEP promised enforcement of specific reforms to
post-mining reclamation. [The Bragg case is discussed
at length in "Valley fills"].
Rule of law. Proper
reclamation, as envisioned by the social compact, produces
jobs. This result is what Congress
had in mind when it authorized the narrow exception for
mining coal by mountaintop removal and valley fill.
The regulators and the coal industry have let down the
people of West Virginia by not abiding by the law.
The amalgam of industry non-compliance and governmental
lack of enforcement has created an unrealistic expectation
that the status quo will continue.
The rule of law
must mean something and it will prevail. It is hard
to be sympathetic to coal companies, even being aware of
their large investments. They chose unwisely to invest in
a doomed regulatory passivity. Perhaps they thought
their political and monetary clout would rule the day as
it always had done previously.
Those who will be hurt in the
short-term are miners and their families. Had the
coal producers not flaunted the law and the regulators not
enabled them to do so, the unrealistic expectation would
never have developed and people would have gone about their
lives. West Virginians, particularly in the southern
counties, would not have postponed diversification of
their economy. Now they are suffering the consequences
of betting their futures on an Old Economy industry -- coal.
The dysfunctional relationship
between producers and regulators must end. The
law must be enforced. Both governmental regulators
and coal producers have a moral obligation to assist individual
West Virginians and their families who have been hurt by
Last updated on Friday, July 27, 2001