By Taylor Kuykendall

News release by the Alliance of Appalachia (members include Kentuckians for the Commonwealth et al.) on December 1..

Grassroots Progress Report by the Alliance of Appalachia (members include Kentuckians for the Commonwealth et al.) on December 1.

Despite industry cries of an Obama administration " war on coal," an alliance of environmental groups say they have found the administration's progress on addressing the impacts of mountaintop removal coal mining "frustrating."

In a new report from The Alliance for Appalachia, a coalition of environmental organizations, the Obama administration is granted some credit for addressing the impact of mountaintop removal, but is also scolded over "shortfalls" in complying with a 2009 memorandum of understating regarding an interagency action plan on surface mining in Appalachia. In the memorandum, the U.S. EPA, the U.S. Department of Interior and the U.S. Army Corps of Engineers agreed to work together to reduce environmental consequences of certain surface mining activity and to help diversify coalfields economies.

"The coal industry is never going to be like it was in the 30s. The jobs have been on a decline since the beginning. We need to realistically think of the future of Appalachia, and fix this mess," said Teri Blanton, a volunteer with The Alliance for Appalachia and Kentuckians for the Commonwealth.

Mountaintop removal, or MTR, coal mining is a technique in which operators blast away the overburden above a coal seam to access an underground deposit. Depending on the permit conditions, the land then goes through various reclamation processes that can include things such as restoring the land to its approximate original contour, but may also include the burying of streams in nearby valleys in the process of mining.

Multiple studies have linked the technique to potential environmental concerns, including threats to human health for those who live nearby. According to the Alliance report, more than 2,000 miles of stream have been buried by the mining practice and more than 500 mountains have been affected.

Representatives of the coal industry were dismissive of the report's identification of policy gaps. Bill Bissett, president of the Kentucky Coal Association, criticized the paper, including pointing to a lack of a distinction between mountaintop removal and other forms of surface mining, some of which have much smaller impact. He said the exclusion "demonstrates either political desperation in achieving their goals or a lack of knowledge on the subject they are criticizing."

"Not only are these groups out of step with the vast majority of Appalachians who support coal mining, but they are also missing the overwhelming outcome of the 2014 election in areas of Appalachia that clearly showed that the most pro-coal candidates were successful and President Obama and his policies are, as The Louisville Courier-Journal reported, 'completely toxic,'" Bissett said, referring to political commentary linking affiliation with Obama to Democratic losses in the state.

Luke Popovich, a spokesman for the National Mining Association, also referred to the mid-term election as evidence that the "voters of Appalachia soundly rejected the approach this group wants the administration to take," a claim the groups dismissed in a Dec. 3 conference call. Popovich called the group's "presumption" to speak for the community "arrogant."

Alliance's four-part policy 'wishlist'

The four policy issues the group calls for in the report include a selenium standard, a "strong" conductivity rule, a Stream Protection Rule that preserves a "strong" stream buffer zone requirement and "a strong mine fill rule to address the currently unregulated dumping of coal burning waste into abandoned mine sites." Many of the rules would have the greatest impact on Appalachian mining operations where various market and regulatory forces have already made it one of the most challenged regions for mine operators to extract coal.

"These four policy changes will not solve the problems our region faces — but they are key steps to ensuring a safe and viable future for our people," the report states. "With so much at stake for the future of Central Appalachia now, nearing the end of this current administration, we cannot overstate the significance of this administration's decisions in the next two years."

Regarding a selenium standard, the report calls for a water column based selenium standard that is enforceable by citizens. The group points out that there have been studies linking elevated selenium levels to reproductive issues in fish, birds and reptiles.

The group is particularly critical of a recently adopted fish-tissue-based limit for selenium in Kentucky, due to the difficulty of citizen enforcement of the rule. Bissett said the rule is "supported by a tremendous amount of evidence." Popovich was also supportive of a fish-based standard.

"If the fish show acceptable levels, why do you need an arbitrary [selenium] number for the water they swim in? But this isn't really relevant to this group's goal; they want a specific [selenium] number that mining activity cannot possibly meet," Popovich said.

Already, companies with a heavy presence in Appalachia such as Patriot Coal Corp., Alpha Natural Resources Inc., CONSOL Energy Inc. and Arch Coal Inc.have faced and lost numerous legal challenges brought by environmental groups regarding selenium pollution.

An official with the EPA confirmed with SNL Energy on Dec. 3 that the agency anticipates proposing an aquatic life ambient water quality criterion for selenium in 2015.

The groups' call for a conductivity rule, the report states, is required to replace the current EPA guidance, which it says is not enforced by states even though it has been held up in court decisions. Permits, the group said, are frequently issued without a limit on water conductivity.

“Mining's impact on waterways is regulated. End of story, as far as we're concerned.”

 Luke Popovich, spokesman, National Mining Association

The EPA official told SNL Energy that the agency is currently working to develop a draft recommended field-based method for states to develop ambient aquatic life water quality criteria for conductivity.

"The draft method has recently gone through an independent, contractor-led, external peer review and [the] EPA anticipates the draft method will be made available in 2015 to the public to provide scientific views, which [the] EPA will take into account before finalizing the method," the official said.

Popovich said that conductivity, a measurement of ions in the water, is already used by states and the EPA as a part of the standard setting criteria for water quality. He said that because fish vary widely in their tolerance for conductivity, it should not be an "absolute determinant for standard setting."

"We think this is appropriate; we don't debate the inclusion of conductivity, only how it is used for assessing water quality," Popovich said. "And on this score, we doubt [the] EPA's benchmark for using conductivity is scientifically valid."

The environmental coalition also calls for the U.S. Office of Surface Mining Reclamation and Enforcement to enforce a 1983 rule on buffer zones between streams and mining activity. The agency is rewriting the rule, and a Bush-era rewrite of the rule that eased restrictions on mining was recently tossed out by a federal judge. Popovich was also dismissive of the need for a stream protection rule.

"There is an existing standard that protects water quality," Popovich said. "Mining's impact on waterways is regulated. End of story, as far as we're concerned."

An OSM official did not respond to an SNL Energy request for comment on the report, but recently said the agency is aiming to complete the rewrite of the stream buffer zone rule in Spring 2015. The Alliance called for stronger protections for streams in the rewrite.

The final policy recommendation from the group was a mine fill rule. The group said that storage of coal combustion waste has not been regulated and poses a danger to Appalachia residents. The group says that the rule is needed to "address the currently unregulated dumping of coal burning waste in abandoned mine sites.

However, Popovich said no such unregulated dumping exists. He pointed to a 2006 report from the National Research Council that said OSM already has the regulatory framework in place to deal with the coal combustion residues used in mine reclamation and suggested EPA defer to OSM at sites under OSM jurisdiction.

Obama frustrates MTR foes

Despite a conservative and industry tendency to see environmentalists and the Obama administration's relationship as cozy, in a Dec. 3 press conference, various representatives of the Alliance expressed discontent with the administration on the issue of mountaintop removal. With much of the current debate focused on coal's role in climate change, mining's local impacts have seemingly garnered less attention.

"Officials in this administration will point to other institutions of power that challenge their authority — industry-backed politicians, industry lawsuits, and more — to explain away their inaction," the report states. "Yet, it remains the authority and the legal responsibility of these agencies to protect our health and our environment. We expect action."

Bill Price, of the Sierra Club, said the issue, which appeared a priority in the wake of the 2009 memorandum of understanding, is slipping from the forefront.

"There seems to be this misconception that MTR has ended," Price said. "But today, as this press conference is going on, blasting is still occurring, water is still being polluted and communities are still suffering."

“When they told us this was a good beginning and we could start a dialogue, it was really frustrating because this dialogue had started more than five years ago.”

 Davie Ransdell, Kentuckians for the Commonwealth

Teri Blanton, with the Kentuckians for the Commonwealth, said the group had high hopes for the Obama administration after the MOU was announced. She said that in the past several years, the groups' efforts seem to be perpetually reset, particularly in regard to meetings with the White House Council on Environmental Quality.

"The administration has become more and more reluctant to meet with us and our last couple of meetings," Blanton said. "It's like every time we would go into to meet with the CEQ, it would always be someone new. We were always playing catch-up, catch-up. So for the past five years, we've been just begging for these things to happen and time is running out."

Blanton said she was not sure why the faces at the table continually changed, but said that the turnover within the group appeared high.

"It got quite discouraging," Blanton said.

Davie Ransdell, with the Kentuckians for the Commonwealth, described a meeting with the CEQ she said was truncated just days before it was scheduled to take place. In addition to shortening the meeting, she said that instead of the technical experts the group had been talking to, a room of public relations representatives who mostly had been with the agency less than a year attended.

"Pretty much everything that we had planned to discuss had to be dumbed down for this new, unprepared audience," Ransdell said. "When they told us this was a good beginning and we could start a dialogue, it was really frustrating because this dialogue had started more than five years ago."

A request for comment sent to the CEQ was not returned.

Clock ticking with current administration

Despite the frustrations, the groups are holding onto some of the optimism gained from early stages of the Obama administration. Price said the organizations maintain high hopes that the final two years of the administration may provide "ample opportunity" for their cause.

He declined to speculate what could become of that progress if the White House was taken by another political party, but said the groups have worked with Republican administrations in the past.

"These types of issues are really nonpartisan and are about human health and human life," Price said.

Patrick McGinley, a professor of law at West Virginia University with expertise in coal issues and law relating to federal and state agencies, said shortfalls identified in the report come from political challenges facing the administration. He said since the 2010 elections, the Republican majority of the U.S. House, along with coal state Democrats have challenged the administration on mountaintop removal "at every turn."

"If the administration's initial MOU could be characterized as a 'focus,' it quickly lost that focus," McGinley told SNL Energy. "The strident political attacks from the opposition and from within its own party were based on a false, but unrelenting public relations theme meme accusing it of being engaged in a 'war on coal' that would destroy coal state economies and coal mining communities. Although the MOU promised simply to enforce the CWA and SMCRA in a way that would protect the coalfield environment and communities, the administration's defense of its MTR agenda was feeble at best."

McGinley said the newly Republican-dominated U.S. Senate, combined with the majority in the House, will not necessarily be enough to reverse course on the "small steps" the administration made on mountaintop removal. He said the most damage the new Congress could likely do would be to under-fund or defund the EPA and OSM's ability to enforce water and mining regulations related to mountaintop removal.