Summary

For 20 years, coal companies blasted off the mountaintops around the house of Rick Bradford, a retired teacher in Edwight, West Virginia, to excavate thin coal seams buried hundreds of feet deep. After detonating millions of pounds of explosives, trucks the size of his house dumped the loosened waste rock, called overburden, into the nearby valleys, burying the streams below. “It’s like a bomb hit,” Bradford said of the mountains he hiked since a child and where many of his loved ones are buried.

Mountaintop removal, a form of surface mining, has already leveled or severely impacted 500 mountaintops in West Virginia, Kentucky, Virginia, and Tennessee, according to Appalachian Voices, an activist group opposed to mountaintop removal. An Environmental Protection Agency assessment calculated that mountaintop removal has buried more miles of stream than the entire length of the Mississippi River.

Coal companies continue to operate these mines without stringent regulation, even as public health researchers have amassed significant evidence over the last decade showing that people like Bradford who live near mountaintop mines disproportionately suffer and even die from a litany of health problems, including cardiovascular disease and cancer. A study conducted by West Virginia University researchers revealed that tiny dust particles released to the air in Edwight promoted cancer growth when injected into human lung cells, while another by the United States Geological Survey, a science agency within the Interior Department, found that nearby streams have lost half their species of fish.

Citing “advances in science,” the US Department of the Interior, which oversees mining in the country, enacted the Stream Protection Rule in 2016 to mitigate some of mountaintop mining’s harmful effects. The rule required mining companies to monitor and restore streams polluted by their activities, but Congress got rid of it in one of its first acts under the Trump administration.

This was only the beginning of an avalanche of deregulation under President Donald Trump, who promised not to stop until the number of federal regulations is “less than where they were in 1960.” To do so could be devastating for public health and the environment since it would return the US to a time when there were virtually no federal laws prohibiting companies from dumping toxins into the air and water. Trump has blamed regulations for depressing wages and extolled a vision that prioritizes unfettered business activity. He has appointed industry lobbyists and insiders to top regulatory positions, many of whom opposed health and safety regulations.

Click to expand Image Mountaintop removal mine on Coal Mountain in Wyoming County, West Virginia © 2018 Human Rights Watch

This report examines how, following aggressive industry lobbying, Congress rolled back a modest regulation, making it easier for the coal industry to destroy mountains and bury the waste rock in streams, and the Interior Department canceled a study it had funded assessing the practice’s potential health impacts. It is based on research conducted over the course of one year that included reviewing dozens of scientific studies and government and court documents, as well as 42 interviews with mining and health experts, impacted residents, and others over five visits to the coalfields in West Virginia. The report finds that Congress’ decision to repeal the rule ignored significant evidence indicating mountaintop removal poses a health risk to nearby residents and gave undue consideration to a deeply flawed industry-funded study that implausibly concluded that the rule jeopardized nearly all the jobs in the coal industry. Compounding all of this, the Trump administration abruptly withdrew funding from a study that could have built new consensus around the practice’s health impacts.

The government’s response to the health risks of mountaintop removal offers a cautionary tale on the danger of viewing regulations solely as corporate burdens when in fact they are intended to protect health and other basic human rights. Where evidence indicates that corporate activities pose risks to public health or other human rights, the US federal and state governments have a duty to regulate these activities so as to effectively mitigate these risks. They should not eliminate existing regulations that serve to protect people from harm without putting in place effective alternative protections.

Yet that is exactly what the Trump administration has done, particularly by prioritizing the coal industry and aggressively dismantling regulations related to it. Perhaps no industry’s history better captures the sheer amount of human tragedy buried in hard fought protections for workers, communities, and the environment that the government now seeks to eliminate. Sherry Walker, whose husband and father were coal miners and who sued a coal company that she believes contaminated her well, noted that supporting mining goes hand-in-hand with protecting miners and their families. “I have nothing against coal mining. It’s my family’s trade; it’s our way of life. But if you damage someone’s property, take responsibility,” she said.

Click to expand Image One of the mine’s valley fills. The rocks replace a buried stream and water collects in a sediment pond below, feeding into a stream that runs alongside a row of homes, all of which rely on private wells. © 2018 Human Rights Watch

The Trump administration is in the process of rolling back many important regulations meant to mitigate the health and environmental impacts of the coal industry– from monitoring the health of surface miners to safely disposing of coal ash. This report focuses on how Congress invoked the Congressional Review Act, a little-used law that gives it veto power over federal agency rules, to cancel the Stream Protection Rule, enacted after eight years of agency review, that required coal companies to monitor their impact on streams and restore them at the end of a mining project. The Trump administration subsequently canceled a half-completed federally-funded study the National Academy of Sciences was conducting on the potential health effects of surface mining in central Appalachia, even though dozens of scientific studies indicate that it poses serious threats to the health of nearby residents and destroys their environment. In doing so, the administration not only assured the continuation of a hazardous form of mining but also robbed the public of an important tool to assess its true cost.

Trump has justified this deregulation of the coal industry as necessary to save jobs. But the much larger threat to jobs comes from changes to the industry itself that the Trump administration and Congress have largely ignored. The level of US coal production in 2017 was roughly the same as it was in 1980, yet the industry then employed five times the number of workers it does today. Ironically, the sharp rise in surface mining, including mountaintop removal, has helped cause the loss of tens of thousands of mining jobs, since it requires much fewer workers than underground mining.

The Health Threat of Mountaintop Removal

Beginning around 2009, Dr. Michael Hendryx, the then director of West Virginia University’s Rural Health Research Center, found higher rates of disease and death consistently clustered in areas where mountaintop coal mining was prevalent in the coal producing counties in Appalachia, a mountainous region that stretches across 13 states in eastern United States. Since then, he and other researchers have published over a dozen peer-reviewed studies showing significantly higher rates of cardiovascular disease, lung and other types of cancer, birth defects, and overall mortality, even after they controlled for factors such as poverty, smoking, obesity, education, race, and metropolitan setting. For example, one study Hendryx co-authored calculated an excess of 1,200 deaths in mountaintop removal counties annually since 1990, when the practice became prevalent, after adjusting for other factors, while another found that babies born between 1997-2003 had nearly double the chance of having circulatory or respiratory birth defects.

The voluminous data is consistent with anecdotal suspicions long held by many residents of these areas and some of the doctors who serve them. “No one is really healthy around here, but it’s hard to know why,” Bradford said. Nicole C., who lives near a mountaintop removal mine in Wyoming County, West Virginia, told Human Rights Watch she constantly worries about the health effects of exposing her two young children, one of whom has Down syndrome, to the household’s contaminated water, which she believes is due to the mountaintop mine above her house. James C., her miner husband, and his father, a retired miner, were born in the valley, known as a hollow, and both said they had clear water until it turned bright orange from iron soon after mining began. “I’m worried about my babies. Is it safe to bathe them?” Nicole said. She said was also worried about the dust coming from the mine site. “If I kept my son’s toys on the porch, they’d become black. I couldn’t get the stuff off,” she said.

Click to expand Image A satellite image of mountaintop removal mines in southern West Virginia. © 2018 Human Rights Watch

Doctors and nurses Human Rights Watch spoke with were cautious about drawing conclusions from the anecdotal experience of Nicole and others, but several said they were struck by the number of their patients who had respiratory and other health problems and suspected mining-related environmental causes. “My goodness! We get all kinds of symptoms,” Dr. Wesley Lafferty, a primary care physician in Boone County, West Virginia, said. “Rashes, restrictive airway disease [including asthma and chronic obstructive pulmonary disease], dermatitis, generic skin disease. I definitely feel there is an environmental component to that.”

Human rights law protects the right to health and access to safe drinking water. The US government has a duty to prevent or regulate activities that pose risks to human rights. This can extend to activities that have not been conclusively shown to cause harm, where there is good reason to believe that they may. Because of the diffuse nature of many environmental harms and the long period it may take for health impacts to manifest, governments should take precautionary measures based on the best available science. They should also endeavor to carry out or support studies that will establish the human rights risks in a definitive way.

While proving causation should often not be a precondition for regulation, a recent group of studies by West Virginia University researchers examining air particles in communities near mountaintop removal sites provides evidence suggesting that mountaintop mining is not only associated with poor health but may cause cancer and cardiovascular disease. Air samples revealed high levels of inhalable particles consisting mostly of silica, a toxic heavy metal commonly found in rock dust. Researchers didn’t test for potentially hazardous inorganic substances, such as residue from explosives, chemicals used to process coal, and constant diesel emissions from massive trucks. Rather, they sought to gauge the danger to residents’ health by injecting the particles into mice and human lung cells. Multiple experiments showed that they promoted tumor growth and changed cellular function in ways consistent with cardiovascular disease.

Click to expand Image The kitchen sink, discolored by iron and manganese in water, in a home near a mountaintop removal mine on Coal Mountain in Wyoming County, West Virginia. © 2018 Human Rights Watch

A team of researchers at Duke University, North Carolina, as well as the US Geological Survey, have conducted extensive research on streams near mountaintop removal and concluded that they are severely polluted by the practice. The US Geological Survey found that impacted streams “have less than half as many fish species and about a third as many fish as non-impacted streams,” and other studies similarly found adverse impacts on birds, insects, and even bacteria. Impacted streams’ conductivity – a unit often used as a proxy for pollution – frequently measures more than six times the level the Environmental Protection Agency identified as the limit for preserving their health.

The research assessing potential health risks of human exposure to water contaminated due to mountaintop removal is less developed than research on air pollution, but the lack of research and data collection on this issue is itself worrisome. Many people in these communities still rely on private wells, which are not subject to state or federal water standards or monitoring. Human Rights Watch visited seven families who live near Coal Mountain in Wyoming County, West Virginia and allege that an active mountaintop removal mine near their homes is responsible for contaminating their well water.

Although users of public water systems may be less at risk of negative health impacts from their water because federal law requires regular monitoring and treatment, water quality in public systems may nonetheless be adversely impacted by mountaintop mining pollution if not properly managed and monitored. Hendryx conducted a survey of public water treatment facilities in West Virginia from 2001-09 and found that mountaintop removal counties had over five times the number of Safe Drinking Water Act violations, principally for lack of monitoring, than in other Appalachian counties. Some facilities, particularly small ones, may find it difficult to monitor due to a lack of resources, but it nevertheless raises concerns that authorities and residents may be unaware that water contamination from mountaintop removal has negatively impacted both the source water for public systems and the water these systems then supply to users.

Health experts with whom Human Rights Watch spoke recognized that other factors, such as high levels of poverty, unemployment, drug addiction, smoking, and obesity in these areas undoubtedly contribute to residents’ poor health. But many noted that these added stressors can also make people more vulnerable to air and water pollution from mountaintop removal. “All of our systems push us to homeostatis,” Paul Locke, a scientist who chaired the halted National Academy of Sciences’ study, explained, “but the more insults I have, the more difficult it is to return to homeostasis.” In other words, the pollution attributed to coal activities may exacerbate health problems it is not itself the cause of.

Click to expand Image Source: Based on Melissa M. Ahern et al., “The association between mountaintop mining and birth defects among live births in central Appalachia, 1996-2003,” Environmental Research, vol. 111, 2011, p. 842. © 2018 Human Rights Watch

The Coal Industry’s Response

As the drumbeat of health studies linking mountaintop removal to poor health intensified, coal companies, and their key trade group called the National Mining Association, launched aggressive efforts to discredit the evidence and beat back any attempts at regulation. The industry had been fighting legal challenges to mountaintop removal since a group of West Virginians sued the federal and state government in 1998, claiming that the practice violated a surface mining rule that, according to its author, was specifically designed to counter the environmental impacts of mountaintop removal and that the government issued the industry permits through a process that violated rules under the Clean Water Act.

The US government settled most of the case’s claims by agreeing to conduct a comprehensive study on mountaintop removal’s environmental impacts. However, in 2002, the US Army Corps of Engineers worked together with the Interior Department, which was under the direction of a former coal lobbyist, to change the Clean Water Act rules to allow coal companies to easily obtain permits to fill a valley with mountaintop removal overburden (known as valley fills), circumventing one of the legal problems the lawsuit identified. The agency later released a version of the environmental impact study that included no recommendations to limit mountaintop removal or address its toxic legacy. Instead of proposing limits on mountaintop removal, it proposed changing a surface mining rule to remove another legal obstacle to valley fills that the lawsuit raised.

Click to expand Image A satellite image of mountaintop removal mines in southern West Virginia. © 2018 Human Rights Watch

Beginning in 2010, the emerging evidence of mountaintop removal’s health risks presented a new threat to the practice. Several of the West Virginia University researchers involved in these studies told Human Rights Watch they had the impression that the coal industry, which is a major university funder, put pressure on the university’s administration to end the research. While they said the university protected their academic freedom, in October 2011 the university’s public relations director wrote to the leading environmental journalist for West Virginia’s Charleston Gazette requesting that he refrain from using the term “WVU study” in order clarify “that the institution itself takes no position on the findings.” Coal companies also began to fund research, including a $15 million grant to Virginia Tech, a university, to establish a coal research institute; the grant produced the only studies that found mountaintop removal had no adverse health impacts.

The Obama administration, after studying the issue for eight years and receiving 94,000 public comments, adopted the Stream Protection Rule on December 20, 2016. The rule disappointed environmental activists because it did not ban mountaintop removal. Instead it required coal companies to monitor and restore streams impacted by their activities – an issue that most significantly affects mountaintop removal because of its reliance on valley fills that bury and contaminate streams. A government-funded assessment of the rule’s impact found it would cost $52 million to implement and ultimately cost several hundred jobs.

The National Mining Association aggressively opposed the rule and funded a rival assessment, based only on coal operators’ opinions of the rule’s impact. On that basis, the industry study claimed it could wipe out as many as 77,000 jobs – which amounts to nearly the industry’s entire workforce. Stoking the fear of potential massive job losses in already hard-hit areas was an incredibly effective tactic. Congressional representatives who voted to repeal the rule cited this study exclusively, ignoring voluminous scientific evidence of mountaintop removal’s environmental and health impacts. Congress canceled the rule within weeks of starting its term by invoking a little-used law called the Congressional Review Act in February 2017. All but one of the 54 senators who voted in favor had received campaign donations from the coal industry since 2012, the earliest year their term could have begun, totaling over $3.25 million, compared to only 12 senators who voted to keep the rule, who received a total of $45,000.

Click to expand Image A valley fill with rocks replacing the buried streambed in the background and the surviving stream in the foreground © 2018 Human Rights Watch

Six months later, the Interior Department ordered the National Academy of Sciences (NAS) to halt a half-completed study it had funded on the potential health effects of surface coal mining operations in central Appalachia, claiming the agency was reviewing all studies over $100,000. But a NAS spokesperson said that none of its other studies for the agency were stopped and such a decision was highly unusual. Emails obtained by a journalist through the Freedom of Information Act (FOIA) and viewed by Human Rights Watch, although heavily redacted, indicate that the “review” focused solely on this study and that the decision was made almost immediately after it began. Critics of the decision point out the suspicious timing to argue it was the product of inappropriate political interference.

The disregard for public health risks in Congress’ decision to cancel the Stream Protection Rule and the Interior Department’s decision to halt the NAS study exemplifies the problem with carrying out deregulation with industry’s interests as the primary consideration. With no proper assessment of a rule change or rollback’s health risks, Americans, especially the tens of millions of people who rely on private wells, are left vulnerable to paying the price with their health.

Recommendations

To the US Department of the Interior

Ensure rigorous enforcement of all current rules applicable to mountaintop removal, including the Stream Buffer Rule. Take effective action when state governments fail to adequately enforce these rules.

Enact a new rule that protects people living near mountaintop removal from health risks and other adverse impacts, including protecting their water and air quality. Ban the practice entirely if no other regulatory approach offers adequate protection from serious harm.

Reinstate, complete, and publish the canceled National Academy of Sciences study assessing the potential health effects of surface mining operations in central Appalachia.

Adopt rules and a transparent process to guide agency decisions to halt scientific studies.

To the US Environmental Protection Agency

Rigorously enforce the Clean Water Act and Clean Air Act in areas where mountaintop removal mining is prevalent. Ensure the permitting process is commensurate with the mining practice’s impact on streams, including, if appropriate, no longer issuing permits for valley fills.

To the US Congress

Enact a law setting out specific criteria federal agencies must meet when deciding to halt or alter the terms of reference for scientific research they have agreed to fund and a transparent, consultative process for determining whether those criteria have been met.

Enact a law that better protects private wells from the risk of industrial contamination. Such a law should require a risk assessment before an agency may issue a permit where there is a reasonable risk that such contamination may occur. It should also establish mechanisms for monitoring potential impacts on well water while the permit is active and providing redress in cases where contamination has been established. The law should require companies to engage with potentially impacted residents, including by providing them with accurate and accessible information and a grievance mechanism.

To state environmental agencies where mountaintop removal occurs

Rigorously enforce all current rules applicable to mountaintop removal, including the Stream Buffer Rule.

Identify residents in mountaintop removal areas who rely on private wells. Ensure the safety and acceptability of residents’ water, including by regulating, monitoring, and treating toxins that go beyond federal requirements where appropriate. Where treatment cannot sufficiently or economically reverse pollution, either extend the municipal water system to impacted areas or ensure the provision of safe water through other means. Consider levying a “water tax” on coal companies in the event revenue is an obstacle to remedying mining-related water contamination.

Enact and enforce rigorous policies to protect against undue corporate influence over the regulatory process, including protecting the independence of scientific research.

To coal companies and the National Mining Association

Ensure that any industry-funded research is accurate, independent, and peer-reviewed, and refrain from undermining the impartiality and objectivity of any academic or scientific research.

Mitigate any adverse health risks of company activities, including in cases where substantial scientific evidence indicates potential impacts. Consider refraining from any activities whose severe harmful impacts cannot be sufficiently mitigated.

Conduct public meetings in residential areas where well water may be negatively impacted by mining activities prior to initiating mining and periodically throughout the life of the mine. Inform residents of the risks of water contamination and develop a complaint mechanism whereby residents who believe their well water has been damaged can seek redress.

Methodology

This report examines the health impact of mountaintop removal, a form of coal mining that involves destroying mountains with explosives to access coal underneath, and then filling valleys with the overburden. It also looks at the ways in which the close relationship between government officials and the coal industry has led Congress to cancel a regulation that would have required coal companies to monitor and restore streams impacted by their activities and prompted the Interior Department to halt research vital to assessing mountaintop removal’s health risks.

In researching this report, Human Rights Watch reviewed hundreds of documents, including numerous peer-reviewed, scientific studies related to mountaintop removal’s impact on air quality, water quality, and public health. We also reviewed raw health and mining data and relevant regulatory documents, as well as media articles and other publicly available information.

Human Rights Watch staff conducted field research in areas of southern West Virginia where mountaintop removal is most prevalent, including Boone, Raleigh, Kanawha, Logan, Fayette, and Wyoming counties, as well as in northeastern Tennessee. During five visits conducted in November 2017, and between March and August 2018, Human Rights Watch interviewed scientists, doctors, mining specialists, lawyers, environmental activists, and impacted residents. We conducted additional interviews by phone. In all, Human Rights Watch interviewed 42 people. All interviewees freely consented to the interviews, and Human Rights Watch explained to them the purpose of the interview and did not offer any remuneration.

Human Rights Watch wrote letters to the Interior Department; Environmental Protection Agency; United States Army Corps; West Virginia Department of Environmental Protection; Governor Jim Justice of West Virginia; National Mining Association (NMA); Ramboll Environs, a consulting company hired by the NMA to produce a study on the Stream Protection Rule’s impact; Dynamic Energy, a coal company with mountaintop removal operations; Appalachian Research Initiative for Environmental Science (ARIES), an academic initiative funded in part by coal companies; and a scientist who published a study funded by the coal industry. We received substantive responses from the Environmental Protection Agency; United States Army Corps; National Mining Association; ARIES; and the scientist, which are integrated into the report and included in full as an annex.

The findings of this report are based overwhelmingly on the scientific evidence of mountaintop removal’s health impact and other documents indicating the government and coal industry’s response to these studies.

I. Background

Since Donald Trump became president in January 2017, his administration and Congress have canceled, withdrawn, or weakened hundreds of rules enacted to protect workers, communities, and the environment. At a press conference capping his first year in office, Trump celebrated this deregulation and made clear he was only getting started. Standing triumphantly beside a mountain of paper containing all current regulations and a much smaller stack containing regulations in effect in 1960, he promised: “When we’re finished . . . we will be less than where we were in 1960.”

The date he chose is significant. The 1960s marked a fundamental shift in how the US government regulates businesses. The visible rise in pollution – from the acrid emissions of cars and power plants blackening the air to oil spills and industrial waste poisoning fish – brought public attention to the environmental degradation wrought by unregulated industry. At the same time, a steady drumbeat of ground-breaking studies began to link exposure to various toxins with serious health problems. The nation’s sense of alarm went beyond air and water pollution as concerns began to emerge about synthetic chemicals and other hazardous substances that had become ubiquitous in consumer products, food, and workplaces.

Capping a decade of growing concern, in 1969, sparks from a train passing through northern Ohio flew onto floating oil-slicked debris on the Cuyahoga River and ignited a fire that flared to 50 feet high. The images of the fire lighting up the heavily polluted river captivated the country, seeming to encapsulate the failure of a system that gave businesses virtually unfettered freedom to pollute the environment with impunity. Public pressure jolted the government into action, and within two years Congress passed three landmark pieces of legislation that remain the pillars of the environmental regulatory framework in the United States.

The Clean Air Act, passed in 1963 to provide federal funds for research, was updated in 1970 to set broad federal emissions standards. Also in 1970, President Richard Nixon established the Environmental Protection Agency. Two years later, Congress overrode Nixon’s veto to pass the Clean Water Act, which placed restrictions on the discharge of pollutants into US waterways. A third law passed in 1970 established the Occupational Safety and Health Administration to ensure worker safety by limiting their exposure to hazardous substances. In addition to these wide-ranging laws, Congress passed numerous laws around this time to address specific pollutants that studies had shown posed risks to public health.

In the decades since, new laws and regulations have been put in place or old ones amended to reflect changes in industrial practices, products, and other business activities, as well as new evidence of health risks to workers, consumers, and communities. Governments may legitimately prune rules that are unnecessary or excessive, but the Trump administration’s speed, limited public consultations, devaluation of science, and close relationship with industries standing to benefit from deregulation have driven a reckless approach that threatens workers, public health, and the environment.

Trump and senior officials in his administration have broadly painted regulations as an assault on businesses, the economy, and an impediment to creating jobs rather than a set of protections for the public at risk of being harmed by business activities. In its first semi-annual report, the US Office of Management and Budget dismissed 860 rules that the administration withdrew or canceled as “ineffective, duplicative, or obsolete” without even bothering to list them. The director, Mick Mulvaney, who ensures the work of federal agencies conform to the president’s policies and produces the president’s budget, said such a list is not necessary because “none of them are very sexy…None of them rise to the level of getting national attention.”

There are numerous examples of industry-backed deregulation under President Trump that threaten public health, but perhaps none better captures the contradictions inherent in claiming deregulation is good for workers and rural communities so well as the administration’s ongoing war on coal regulations. Parroting the industry’s claim of a war on coal, Donald Trump made deregulating coal a centerpiece of his campaign promise and, since becoming president, his administration’s policy agenda; voters in West Virginia, a state where coal has historically been central to the economy, elected Trump by a margin of more than 40 points, the highest of any state.

Fifty years ago, West Virginian and other Appalachian miners were at the forefront of demanding government protection from mining companies that they saw as taking their lives and health for granted. As described below, miners’ strikes and protests across Appalachia were instrumental in securing the Federal Coal Mine Health and Safety Act in 1969, the first industry-wide set of regulations of its kind that predated even the Occupational Safety and Health Act.

Coal Unregulated

The coal industry has a very long record of opposing regulations to protect public health. By the 1880s, when coal overtook wood as the primary source of energy in the US and the industry employed around a quarter of a million miners, the dangers of the coalfields were already well documented. Scientific studies since have greatly refined Americans’ understanding of the health risks associated with mining, transporting, storing, and combusting coal. In recent years, these concerns have been amplified by greater awareness of coal’s contribution to climate change and the impacts of climate change on human health, including its potential to exacerbate some of the localized health risks of coal mining. Still, mining, rail, and power companies profiting from coal continue to wage a more than century-old battle against rules protecting workers and communities from coal’s immediate harm to human health.

Denial of Black Lung Disease

It has long been known that exposure to silica, the second-most common element in the earth’s surface, can cause a form of lung disease called silicosis. This makes any person whose job involves blasting, drilling, or handling rock dust susceptible to the disease, including coal miners. But as early as the 1830s, doctors began documenting coal miners coughing up black tar that eventually made them unable to breathe, symptoms distinct from silicosis. In the following decades, doctors began to sound the alarm as they documented thousands of cases of miners suffering from what came to be known as black lung disease. Yet the coal industry largely denied its existence, with some representatives even arguing that the black tar coating miners’ lungs was good for their health.

In one illustrative anecdote from 1901, a coal foreman who served on the health board of a coal community took the rare step of presenting a paper at the Pennsylvania Sanitary Convention that alleged that one in two miners had “miner’s asthma.” A representative of the coal industry countered that “there is nothing in the mining industry that makes it unsanitary” and blamed miners’ health problems as “doubtless closely related to the rum shop.” Similarly, a 1909 union activist lamented that his fight for stronger ventilation standards was defeated because the employer says “it is not necessary” and that the cost “is going to put the mines out of business.” Miners were hard-pressed to fight back without medical data tracking the prevalence of the disease. No law required doctors to collect relevant data and health clinics in coal communities were unlikely to do so voluntarily since most were controlled by coal companies.

This is an early illustration of a tactic that remains central in the fights around regulation in the country: opponents of regulation exploit the absence or uncertainty of data to fend off rules, including those requiring better data collection and disclosure, even where significant evidence indicates that their activities are causing harm. In the 1960s, several doctors who had treated thousands of miners for black lung disease, including Dr. Donald Rasmussen and Dr. Isadore Buff, launched a public campaign to persuade the medical community to recognize the disease and politicians to act. In 1968, they formed the Black Lung Association along with miners and others, leading grassroots protests and massive strikes across Appalachia. Even then, many industry representatives and government officials continued to deny the existence of the disease. Activist pressure, however, ultimately prevailed and legislation protecting miners was finally passed in December 1969, further discussed below.

Mining Accidents

Black lung wasn’t the only thing killing miners: mining accidents claimed thousands of lives each year. It wasn’t until 1910, after a mine explosion killed at least 367 workers in Monongah, West Virginia, that the federal government established the US Bureau of Mines to promote mine safety. By then, nearly 43,000 miners had been killed in accidents. The Bureau’s work was restricted to research, trainings, and rescue assistance and it had only a minimal impact in reducing mining fatalities. In 1941, Congress empowered the Bureau to inspect mines, but the inspections had little value without legally mandated health and safety standards.

Congress first passed a law requiring minimal mine safety standards in 1947. Although there was no enforcement mechanism and the standards expired after one year, it marked a turning point in miner fatalities: whereas on average 25 out of every 10,000 miners were killed annually from 1943 to 1947, that number dropped to an average of 15 over the next five years. In 1952, Congress passed a new set of standards with limited enforcement power, but the average fatality rate largely held steady until Congress passed the first comprehensive legislation to protect coal miners in 1969.

Coal Regulated

Federal Coal Mine Health and Safety Act of 1969

In the fall of 1968, there was an explosion in a mine in Farmington, West Virginia where 99 miners were working. Twenty-one managed to escape, but repeated explosions made it impossible for rescuers to continue their work and nine days later they sealed the mine, leaving no hope for the trapped 78 miners. The mine had a long history of violating safety standards, including high levels of methane, poor ventilation, and excessive amounts of combustible coal dust that had already caused several fatal explosions. In the months before the explosion, both federal and state inspectors who had visited the mine did not cite the company for violations, even though the fire boss charged with the mine’s safety recorded serious problems with its ventilation equipment.

The protracted drama of this and similar disasters brought national attention to the persistent dangers of mining, giving added fuel to the Black Lung Association’s struggle for safer conditions. In 1969, President Richard Nixon signed the Federal Coal Mine Health and Safety Act, marking a sea change not only in the protection of coal workers, but in the regulation of hazardous business activities more broadly. The law, often called the Coal Act, provided for a number of measures to protect underground and surface miners, including limiting exposure to dust. It also provided for regular inspections and criminal and civil penalties for violations, respiratory health surveillance to underground (but not surface) miners, and compensation for miners with black lung disease.

Coal industry representatives largely opposed the law, arguing variously that it would harm the national economy, was overly burdensome, and overstepped the proper role of the federal government. In another example of exploiting scientific uncertainty, a senior member of the National Coal Association argued that more research was necessary to determine safe dust exposure levels. While miners and their allies were ultimately successful in getting the law passed, it demanded constant vigilance to ensure enforcement and protest efforts to weaken it. The law’s black lung compensation requirement was particularly poorly implemented, leading to miner strikes and the Black Lung Benefits Act in 1973.

Subsequent Legislation

These legislative achievements improved the situation of miners, but mining disasters and black lung continued to claim lives. In 1972, a dam failed above Buffalo Creek in West Virginia, sending an avalanche of black slurry, residue from cleaning coal, down the mountain. The disaster killed 125 people and swept away hundreds of homes, bringing attention to the risks to nearby communities of mining. The plight of these communities, which had been all but ignored, was further brought into focus by the rise in surface mining and its visible devastation of the environment.

In response to these developments, President Jimmy Carter signed a new law that strengthened the 1969 Coal Act and transferred enforcement from the Interior Department to the newly established Mine Safety and Health Administration housed under the Department of Labor. While the Clean Water Act, passed in 1972, limited some water pollution from mining, in 1977 Congress enacted the Surface Mining Control and Reclamation Act (SMCRA) to more comprehensively address pollution caused by surface mining. The law established the Office of Surface Mining Reclamation and Enforcement, an agency under the Interior Department.

This legal framework remains in effect today, effectively dividing the regulation of mining between three federal agencies (see text box). In the decades since, these agencies have updated the rules implementing the relevant laws to reflect technological and scientific changes. The Obama administration promulgated several new rules that affect the coal industry. Some target practices that expose workers and others to immediate health risks, while others seek to reduce the industry’s contribution to climate change. This report focuses on the Stream Protection Rule, which required coal companies to monitor streams impacted by their activities for contamination and restore them at the end of a project. The rule primarily targeted mountaintop removal, a form of surface mining that heavily pollutes nearby streams and evidence indicates exposes nearby communities to serious health risks. The Obama administration also enacted a rule lowering workers’ permissible exposure to coal dust and expanding the monitoring of respiratory health to include surface miners.

Other Obama-era rules affect power companies rather than the mining industry. One such rule regulates the disposal coal combustion residuals – a heavily toxic byproduct of burning coal that is often dumped into unlined pits that leach heavy metals into groundwater and present the risk of a catastrophic spill. Two other rules limit the amount of toxic metals power plants may discharge into waterways and clarify that tributaries and wetlands are under federal jurisdiction as “waters of the US.” Rules addressing climate change include the Clean Power Plan, which mandates a 32 percent reduction in carbon dioxide emissions and another rule limiting methane emissions.

The coal industry responded to these regulations by claiming that they constitute a “war on coal,” inaccurately blaming them for the decline in the domestic demand for coal. Many industry representatives and government officials who agree with them have even claimed that President Obama’s real goal was to put the industry out of business. The Trump administration is currently in the process of weakening or doing away with virtually all these Obama-era rules. But while their rollback might help coal and power company executives, it is at the price of risking the health of their employees, nearby communities, and the environment on which we all depend.

Click to expand Image © 2018 Human Rights Watch

HOW THE US GOVERNMENT ENACTS AND ENFORCES REGULATIONS The process of enacting and enforcing regulations in the United States is a complex interplay between Congress, the president, federal agencies, and state governments. Under the US Constitution, Congress, made up of a 100-member Senate and 435-member House of Representatives, has sole authority to pass laws, and the president must faithfully execute them. In practice, presidents often influence legislation by working closely with members of Congress to pass – or oppose – bills, and they have the power to veto laws that Congress passes. Moreover, presidents oversee and have some influence over the large network of federal agencies that make, and often enforce, the rules necessary for implementing laws. For example, in 1972, Congress passed the Clean Water Act, which granted the Environmental Protection Agency authority to regulate pollutants in the “waterways of the United States.” The EPA, under the direction of an administrator appointed by the president, is charged with defining these terms and setting pollution limits. However, agencies are expected to make such decisions independent of political considerations and must follow specific rule-making processes, which generally include consulting with other agencies and state governments, a public comment period and public hearings, a review of scientific literature, and an assessment of the rule’s impact. Some federal laws, especially environmental ones, grant states the right to enforce them. States may exercise this right by passing a law at least as protective as the federal law and its implementing regulations. In that case, the relevant federal agency oversees state governments to ensure they are adequately enforcing the law. The 1969 Federal Coal Mine Health and Safety Act sets requirements to protect the health and safety of miners. It is implemented and enforced by the Mine Safety and Health Administration in the Department of Labor. The 1972 Clean Water Act empowered the Environmental Protection Agency to regulate pollutants in “waterways of the United States.” The US Army Corps of Engineers shares authority in enforcing the Clean Water Act and, since 1989, it has been responsible for issuing permits for mountaintop removal valley fills. The Clean Air Act, which is implemented and enforced by the EPA, may also be relevant to surface mining due to the dust it generates, but it has rarely been enforced in this way. The 1977 Surface Mining Control and Reclamation Act lays out specific requirements for preventing, mitigating, and addressing the environmental impacts of surface mining. The Office of Surface Mining and Reclamation Enforcement, housed within the Department of Interior, is responsible for implementing the law. In enacting rules, it often relies on the scientific findings of the US Geological Survey, an agency within the Interior Department, or the National Academy of Sciences, an independent institute established by a law passed in 1863. All Appalachian states where mountaintop removal is present, except for Tennessee, have opted to enforce the law on their own.

Mountaintop Removal

Beginning in the 1970s, mining companies began to experiment with new ways of excavating coal from the central Appalachian Mountains, an area that covers parts of West Virginia, Kentucky, Virginia, and Tennessee. Rather than hauling coal piece by piece through underground tunnels, they began to remove sections of the mountain to expose buried coal seams. Within a decade, these surface mines became more ambitious, eventually removing hundreds of vertical feet of entire mountains to expose ever-larger areas of coal, a form of mining now known as mountaintop removal. Official mining data does not generally disaggregate different types of surface mining, but according to Jack Spadaro, a mining engineer and mountaintop removal expert, the vast majority of surface mining in central Appalachia is mountaintop removal.

Between 1985 and 2015, 2,900 square kilometers (1,120 square miles) of land, an area around the size of Rhode Island, was newly surface mined in central Appalachia, according to a mapping project using satellite imagery that was done by SkyTruth, Appalachian Voices, and Duke University. A separate Appalachian Voices study, based on satellite imagery and mining permit data, found that by 2009, mountaintop removal had severely impacted or leveled more than 500 mountains. These figures update the scarce publicly available government data on the extent of mountaintop removal. In 2002, the EPA calculated that permits approved in the prior decade allowed coal companies to mine around 1,600 square kilometers of forested mountain – roughly three to four percent of the Appalachian coal region. A separate EPA-commissioned study found that few trees, or even shrubs, survive on the reclaimed mines, threatening 244 terrestrial species and eliminating a major source of carbon capture. Although the amount of mountaintop removal has significantly declined over the past decade, it continues to produce millions of tons of coal per year, particularly in southern West Virginia.

Regulatory Context

Removing a mountain to extract coal has dramatic environmental consequences not only for the densely forested mountains that are demolished, but also for the streams that run through their valleys. In order to reach coal seams, miners clear a mountain of its trees and topsoil and drill holes deep in its surface in which they then detonate thousands of tons of explosives, blasting off up to 400 feet of vertical rock. They then use 100-ton haul trucks to dispose of the loosened soil and rock, called overburden, by dumping it into the nearby valley, filling an area as much as 1,000 feet wide and one mile long and burying streams below. According to the EPA, there were nearly 7,000 valley fills by 2005 and that number was expected to grow to bury 2,400 miles of stream by 2012, for a total distance longer than the Mississippi River. Duke University scientists estimated that valley fills have severely damaged an additional 2,500 miles of streams by contaminating them with heavy metals.

The environmental ravage caused by mountaintop removal was immediately obvious, even if it is only in the last decade that scientific research began measuring its impact on human health. Yet the ways in which the regulatory agencies charged with protecting the water and air from mining pollution have approached the problem has shifted constantly over the past 35 years, shaped by countervailing political pressures and legal rulings. The two principle laws regulating mountaintop removal’s impact on streams are the 1977 Surface Mining Control and Reclamation Act and the 1970 Clean Water Act. The decades-long struggle over the language, interpretation, and enforcement of these laws is addressed in detail in Chapter IV of this report.

Economic Context

As might be expected in a state whose residents call themselves mountaineers, mountaintop removal is not popular in West Virginia, or elsewhere in the Appalachian states where the practice occurs. A 2011 poll conducted by three major environmental groups found that, after a short description of the practice, just 20 percent of voters across the four states where it is prevalent favored allowing it to continue. Those findings were similar to a CNN poll that found only 37 percent of the general public supported mountaintop removal. Despite its unpopularity, the coal industry has successfully upended efforts to better implement existing rules or create new ones that would mitigate mountaintop removal’s environmental impact by emphasizing the potential loss of well-paying jobs. According to the US Energy Information Administration, a federal body that collects energy-related information, there were 4,878 people in central Appalachia employed as surface miners in 2017, making it a modest, but not trivial, source of employment in one the poorest areas in the United States.

The coal industry’s public concern for preserving jobs, however, stands in sharp contrast to its decades-long history of shedding jobs as it increased surface mining production, including mountaintop removal, because of automation and other developments. A sharp decline in coal production in recent years has brought levels to roughly where they were in 1980, when the industry employed 242,000 people compared to today’s 52,000.

The industry was able to increase production while decreasing employment largely by increasing surface mining production, which is much more efficient and outpaced underground mining production in the early 1970s. Between 1980 and 2015, coal mining productivity jumped from just under two tons per miner hour to over six tons; in 2015, productivity of surface mining was 11 tons per employee hour compared to 3.5 tons for underground mining. Mountaintop removal is much less efficient than surface mining in western United States, but it is still less labor intensive than underground mining.

Moreover, the claim that mountaintop removal economically benefits local communities is a dubious one. A study by Dr. Michael Hendryx of West Virginia University conducted analyzing poverty in central Appalachia reveals that the more coal is mined from an Appalachian county, the poorer it tends to be – and counties where mountaintop mining is prevalent are among the poorest. Remarkably, the data analyzed is from 2000 to 2007, the height of the mountaintop removal boom. Whereas average adult poverty rates ranged from 12.9 to 15.3 percent for non-mining Appalachian counties during those years, they were between a staggering 22.1 and 26.8 percent for counties with mountaintop removal and 17.7 and 21.3 percent for counties with other types of mining. McDowell County in West Virginia serves as striking example of how poverty and mining often go hand in hand: mining companies have excavated more than 140 million tons from this county since 1990, yet it has consistently ranked the poorest county in the state.

II. The Health Threat of Mountaintop Removal

A mountaintop removal mine stretches for around four miles along the ridge of Coal Mountain in Wyoming County, West Virginia. The nearly 1,400-acre mine, which according to nearby residents began operating in around 2004, produces enough overburden to cover a 172-acre valley fill that ends a few hundred feet from the home of “Nicole Cook” and “James Cook.” James, a miner who traces his roots to the settler who founded Wyoming County, was born in the same valley, known as a hollow, where he now lives with Nicole and their two children. The family gets its water from a well near the house, which James said had always been crystal clear, until around 2007, when it began to become discolored. They have since tested their well water and found contaminants consistent with coal pollution.

Nicole and James’ four-year-old daughter was born with Down syndrome and has a heart defect that required her to have open-heart surgery when she was six months old, Nicole said. They don’t drink or cook with their tap water – Nicole said she tried cooking with the water when she moved in after marrying James in 2009 but stopped when her cooked black beans turned purple – but they still use it to shower and brush their teeth. “I’m worried about my babies. If it’s safe to bathe them,” she said, adding that she only gives them quick showers and purchased water to bath her daughter in the weeks after her surgery. Nicole also complained of black dust coming from the mine, especially from 2012 to 2013 when the mining company was filling the valley with overburden. “The toys on the porch were black. I couldn’t get the stuff off,” she said.

Nicole told Human Rights Watch that she often worries about the health risks of living so close to mountaintop mining. “We love where we live. We love to can our food and having chickens and pigs,” Nicole said. “We could survive without the outside world except for the water problem.” Her husband said he saw no contradiction between his work as a miner and his expectation that the mining company take responsibility for their pollution. The contaminated water is too serious a threat to dismiss as a cost of doing business: “One day hopefully this land will go to my daughter and son,” he said.

The Appalachian Mountains are among the oldest and most biodiverse in the world and the environmental and cultural cost of destroying them is enormous. But nearby communities and workers may also be paying with their health: blasted rock fills the air with toxic dust and the valley fills contaminate streams with toxic metals. Over a dozen studies published in peer-reviewed journals show significantly higher levels of mortality, cardiovascular disease, birth defects, and cancer in counties with mountaintop removal, compared to those with only underground mining or no mining at all, even when controlling for factors such as poverty and smoking.

Studies conducted by university scientists of air and water pollution from mountaintop removal strongly indicate that exposure to toxins could explain these disparities. Two such studies testing air samples showed high concentrations of particulates too small for the lungs to filter consisting of silica and coal dust as far as one mile from an active mountaintop removal site. In multiple experiments, a team of West Virginia University researchers injected particulate matter from one of these sites into mice and human lung cells and concluded that the matter promoted tumor formation and cardiovascular disease. In another indication of the toxicity of mountaintop removal dust, Appalachian surface miners are disproportionately diagnosed with black lung disease, including those who have never worked in underground mines. Streams near mountaintop removal sites are contaminated with a range of heavy metals, including selenium, that have devastated their fish and insect populations. Residents may be exposed to this contamination, particularly if they rely on well water, which is not regulated by the state or federal governments, leaving residents fully responsible for monitoring and treating for pollutants.

Human rights law requires governments to protect the right to health and access to safe drinking water, which includes a duty to prevent or regulate activities that pose risks to these rights. This holds true even if serious risks have not been proven to the point of complete certainty. Because of the diffuse nature of many environmental harms and the long period of time it may take for health impacts to manifest, governments should take precautionary measures based on the best available science.

In January 2018, John Knox, the UN Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, called on states to enact environmental standards, including “precautionary measures to protect against” harm. Importantly, he noted that, while “the standard should take into account the best available science . . . the lack of full scientific certainty should not be used to justify postponing effective and proportionate measures to prevent environmental harm, especially when there are threats of serious or irreversible damage.”

The European Union requires regulatory measures for any activity that “raises threats of harm to human health or the environment . . . even if some cause and effect relationships are not fully established scientifically.” For a period, the US took a precautionary approach to regulation. For example, the US adopted a law in 1958 that prohibited the addition of carcinogenic chemicals to food. Since 1990, however, that trend has reversed, and the US government has required increasingly high levels of scientific certainty of causation before enacting regulations. In April 2018, the Trump administration proposed a rule that would raise the bar even higher by only permitting the EPA to consider scientific evidence where the underlying data is publicly available.

As the black lung epidemic illustrates, people may fall ill or die in the time it takes to scientifically prove a causal link between exposure and disease, particularly in cases where it takes years for latent diseases to manifest themselves. This approach also risks turning scientific research into a battleground in the war over regulations since one of the ways that business interests can most effectively stymy regulations is by challenging, blocking, or controlling research to undermine achieving a scientific consensus.

“A Lot Sicker, a Lot More Often”

“People around here get a lot sicker, a lot more often,” Junior Walt, 27, an activist against mountaintop removal from Eunice in Raleigh County told Human Rights Watch. Others with whom Human Rights Watch spoke in affected communities expressed a similar sentiment, as well as two doctors and three nurses who work in areas with high levels of mountaintop removal. Most said they suspect mining-related environmental factors played a role, although they cautioned that this was based only on anecdotal observations. Dr. Wesley Lafferty, a family physician who works at Boone Memorial Health Clinic said, “Anecdotally, my goodness! We get all kinds of symptoms: rashes, restrictive airway disease [including asthma and chronic obstructive pulmonary disease], dermatitis, generic skin disease. I definitely feel there is an environmental component to that.” Dr. Lafferty also remarked that he has diagnosed “multiple” nonsmokers with lung cancer in the ten years he has been a doctor.

A nurse who works at a Raleigh county clinic similarly noted that she sees a high number of patients with respiratory problems as well as with “unexplained rashes,” especially in the warmer months “when people spend more time outside and kids play in the stream.” She gave her own experience: “I’ve never smoked but in the past few years I get worse and worse cases of bronchitis.” It’s impossible to determine the cause on an individual level, but “think about it this way,” she said, “a small rural health clinic has its own pulmonologist,” a doctor specializing in respiratory health.

Another nurse who works in an infusion center in Charleston, the state capital located in an area with mountaintop removal, said that she frequently sees asthma patients whose symptoms are so severe that she administers a monoclonal antibody drug that targets asthma, a “pretty extreme treatment” considered to be a last resort due to the drug’s known side effect of increasing the risk of compromised immune system. The nurse, who had previously worked at a hospital in another state, was also shocked at the number of people with cancer she treated relative to the population size. “Cancer is busting at the seams,” she said; the treatment center where she works was recently built to accommodate the lack of space in the nearby hospital, but even they are backed up, she said.

Over a dozen peer-reviewed studies, mostly conducted by West Virginia University researchers, confirm these anecdotal observations about the prevalence of certain diseases: counties with mountaintop removal have higher rates of lung and other types of cancer, cardiopulmonary disease, respiratory disease, birth defects, and premature mortality than those with only underground mining or no mining at all, even when controlling for age, gender, poverty, smoking, and other factors. Appalachians, in general, have poorer health than other Americans, and people living in coal-producing counties tend to be sicker than in the rest of Appalachia, but even when compared against this bleak context those in counties with mountaintop removal fare worse.

In August 2017, the Appalachian Regional Council, a partnership between federal and state governments, published a study revealing stark disparities in health between Appalachia – especially in counties with mountaintop removal – and the rest of the United States, and in comparison to data compressed from 1989-95. Premature mortality, for example, increased in 39 of 45 Appalachian counties with mountaintop removal since 1989-95, whereas it decreased eight percent in Appalachia overall and 25 percent in the rest of the United States. In West Virginia, nine of the 10 counties with the state’s highest cancer mortality rates have surface mining; only five ranked in the top 10 in 1989-95. Among Kentucky’s 120 counties, all five counties ranked highest for cancer mortality have surface mining, whereas only one did in 1989-95.

Researchers at West Virginia University and elsewhere have analyzed whether health disparities between mountaintop removal and other counties can be accounted for by factors such as poverty, smoking, obesity, race, metropolitan setting, and education. Their studies show “the same thing again and again and again,” said Dr. Michael Hendryx, who directed West Virginia University’s Rural Health Research Center until 2013 and pioneered the research. Health outcomes in mountaintop removal counties are much worse “and they’re not explained through any combination of these other risks,” he said. Hendryx began investigating the health impacts of mountaintop removal in 2010 after spending three years researching the health impacts of coal activities. His studies on coal-producing areas found higher rates of hospitalizations; lung and other types of cancer; general mortality; and mortality from heart, respiratory and kidney disease. But he narrowed his research when it became clear that these “disparities are concentrated in the portion of Appalachia where [mountaintop mining] occurs.”

In a 2016 study, Hendryx calculated that “an excess of approximately 1,200 adjusted deaths per year” occurred in counties where mountaintop removal takes place since the practice took off in 1990. While the overall mortality is striking, he noted to Human Rights Watch that one of the difficulties researchers face is that there is not just one distinct health problem associated with mountaintop removal. Instead, communities, and individual residents, can be exposed to different activities and pollutants that translate into a wide range of health risks. He and other researchers have sought to address this problem by gauging disparities in the prevalence of specific diseases while controlling for covariates, as detailed below. They have found that cardiovascular and respiratory diseases, including lung cancer, are particularly high among people living in Appalachian counties with mountaintop removal.

Chronic cardiovascular disease mortality “increased as a function of greater levels of surface mining,” one of their studies found. According to another, in West Virginia, the more surface mining there was in a county, the more frequently residents were hospitalized for respiratory problems – a correlation that disappeared when measured against total or underground coal production. In Kentucky, researchers found two lung cancer clusters – the highest concentrations in the state – that overlap almost entirely with counties where mountaintop removal is prevalent; interestingly, they did not find elevated rates of lung cancer in areas of western Kentucky that are heavily strip mined but not through mountaintop removal.

Researchers also found other types of health disparities between residents of mountaintop removal counties and the rest of Appalachia. In a 2011 study of babies born in central Appalachia between 1996-2003, Dr. Melissa Ahern, Hendryx and other researchers found those whose mothers lived in mountaintop removal counties were 1.26 times more likely to have birth defects, even after adjusting for factors such as the mother’s age, education level, and smoking status. Babies from these counties were nearly twice as likely to have circulatory or respiratory defects than those from non-mining Appalachian counties. Moreover, the prevalence for all birth defects in these counties was significantly higher in the second half of that time frame, suggesting a potential cumulative effect.[119] “That’s a stronger effect than mothers who said they were smokers,” Hendryx, who co-authored the study, told Human Rights Watch. An industry-funded study, further discussed in the next section of this report, disputed the results of the study, claiming one hospital was overinclusive in how it recorded birth defects, skewing the results.

The disparities identified in these health studies rely on county-level data, which is an imperfect measure of mountaintop removal’s highly localized impacts. Dr. Keith Zullig, a professor at West Virginia University’s School of Public Health who co-authored several studies related to mountaintop removal, cautioned that this may dilute mountaintop removal’s actual health impacts. “I would guess that if you got down even finer to the community level, the results would be even stronger for those adjacent to surface mines.”

A 2010 geographical information system-based analysis of cancer mortality rates Hendryx conducted found that distance-weighted exposure to coal mining activities in West Virginia was more highly correlated with several types of cancer than county-level analyses. Hendryx also conducted several studies based on door-to-door interviews that sought to more precisely measure mountaintop removal’s localized impact. A study based on interviews with 773 adults living in two rural areas of West Virginia found that those near mountaintop removal were significantly more likely to report having cancer. Another based on interviews with 682 adults living in two rural areas of Virginia similarly found that those in the area near mountaintop removal had higher rates of respiratory symptoms and chronic obstructive pulmonary disease. A third, based on interviews with 952 adults in Eastern Kentucky, found self-reported rates of asthma and hypertension and other health problems was worse in the area near mountaintop removal. And yet another found significantly higher levels of blood inflammation, a potential marker of cardiovascular disease, in 33 non-smoking, non-miner adults living near mountaintop removal sites than in 15 adults who did not live near mining.

While the scientific studies discussed above found that there is a higher rate of health problems in areas near mountaintop removal, they did not consider how mountaintop removal may cause these problems. Other scientific studies, described below, document mountaintop removal’s polluting impact on air and water and may reveal evidence of a causal link. But even if, as Hendryx told Human Rights Watch, “we don’t know exactly the causal pathways or the specific chemical” that is causing harm, “we know enough to know it’s a harmful practice and people living nearby are severely impacted.”

Air Pollution

“Awful Dusty”: Residential impacts

Dr. Viney Aneja, a scientist specializing in air quality at North Carolina State University, tested the air in the front yards of two homes in Roda, Virginia, a town near the Kentucky border – one located at the entrance of a mountaintop removal site and another approximately one mile away. He measured both the size and the contents of the particulate matter he collected over a 12-day period. At both locations, he found unsafe concentrations of “inhalable particles,” which, measuring 10 micrograms or smaller, are at least seven times smaller than the diameter of a typical human hair. Because of the health risk, the EPA mandates that average concentrations cannot exceed 150 micrograms per meter cubed (μg/m3) in a 24-hour period (or 50 μg/m3 annually). “Ten out of twelve samples taken from the [closer] site exceeded this limit, with one sample more than three times the national standard,” while six samples from the second site also exceeded it. These levels “are in the same range” as those “near an opencast coal mines in India,” the study noted, “and significantly higher than . . . near opencast coal mines in England and the Czech Republic.” His tests also revealed “particulate matter containing coal dust at levels far above what is considered safe.”

In several studies, scientists sought to more precisely measure particulate matter size near mountaintop removal, since its danger grows as particulates decrease in size. The EPA, for example, has more stringent regulations for fine particulate matter smaller than 2.5 micrograms. In one study, over the course of nearly a year between 2011 and 2012, West Virginia University scientists took air samples from Edwight in Raleigh County and Twilight in Boone County, both residential areas near mountaintop removal in West Virginia, as well as third site in a nearby county without mining. The samples from Edwight and Twilight had a significantly higher mass of particulates, as well as higher concentrations between 0.01 and 0.4 micrograms, which are small enough to deposit or adhere to the lung’s surface.

A different group of West Virginia University scientists tested the composition of particulate matter found in two sites within one mile of Edwight, as well as a third non-mining site. They found that the particulate matter from the sites near Edwight was largely made up of silica, which was present at much lower levels in the matter from the non-mining site, and molybdenum, a metal that a Centers for Disease Control report links to “decreases in lung function” that was not at all present in the matter from the non-mining site. Yet another study conducted by West Virginia University tested the air one mile of an active mountaintop removal site in Sundial, located near Edwight, and similarly found that particulate matter below 0.2 micrograms “dominate[d]” the air sample and contained high levels of silica and compounds consistent with coal dust.

Chronic exposure to silica, even in low doses, can cause lung cancer as well as silicosis, a potentially fatal disease characterized by chest pain and difficulty breathing. But the mixture of silica and coal dust may be even more toxic than each individually. Moreover, Hendryx told Human Rights Watch that these studies may underestimate the toxicity of the particulate matter, since they did not test for organic compounds, which could include chemicals from explosives, the coal cleaning process, and diesel exhaust.

For Rick Bradford, a retired teacher who lives in Edwight, mountaintop removal dust was a fact of life for the 20 years he said the mines were active around his house. “When they were running coal dust through here it was awful dusty. Pretty constant for 20 years,” he told Human Rights Watch. A single mountain is often mined for more than 10 years, generating a constant source of air pollution: dust from blasting, grinding and crushing rock, detonating millions of tons of explosives, and excavating and hauling coal, as well as off-road diesel exhaust from massive trucks. “They took 200 feet off the mountain right there,” Bradford told Human Rights Watch, pointing to a blunted mountain visible from his front porch where he said he used to walk the dog with his father. My neighbor “has his daughter buried in a graveyard there,” he said, pointing to another mountain that had been mined behind his house. “Now when I go with him there, it’s like a big desert, like a bomb hit.”

Bradford said they would crush rock right in front of his house, which he worried exacerbated lung problems from before the mining began. “I feel much better since it’s stopped,” he said. Huge plumes of dust are visible when miners blast mountains – it once was so bad, Bradford says he reported it to his state Department of Environmental Protection – but recent scientific research indicates that the particulates filling the air at Edwight that are too small for the eye to see could be responsible for some of the health disparities in his area.

After identifying the size and composition of particulate matter near mountaintop removal sites, West Virginia University scientists conducted multiple experiments on rats and human cells that found the dust can be carcinogenic and cause cardiovascular disease. These ailments have been found be more prevalent in counties where mountaintop removal occurs. In one study, researchers exposed human lung cells and mice to the particulate matter from Edwight. The exposure was equivalent to breathing the air at Edwight for 8.5 years. The study found that after three months of exposure, the lung cells showed significantly higher rates of cell growth and motility, which are carcinogenic properties of malignant cells, than those exposed to a control sample. The mice showed similar results: after two weeks of exposure, they had higher tumor luminescence intensity than those injected with the control sample, “suggesting the tumor-promoting effect” of particulate matter near mountaintop removal sites.

Two additional studies tested the impact of the dust on cardiovascular health. In one, scientists injected rats with a dose equivalent to 1.7 years of accumulated exposure. Afterwards, the rats showed signs of “systemic microvascular dysfunction” consistent with cardiovascular diseases, including “angina, myocardial infraction, stroke, and hypertension.” The second study went even deeper: it found the particulate matter caused cardiac and mitochondrial dysfunction in rats, a response consistent with cardiovascular disease.

Impact on Mountaintop Miners

Appalachian surface miners, who largely work on mountaintop removal mines, suffer from disproportionately higher rates of black lung disease compared to other surface miners, which may be another indication of the toxicity of the dust mountaintop removal generates. The Centers for Disease Control and Prevention’s National Institute for Occupational Health and Safety (NIOSH) conducted two studies, published in 2012 and 2002, on the prevalence of coal workers’ pneumoconiosis (CWP), the scientific term for black lung disease. In 2012, it found CWP “was 2.7 times greater among Central Appalachian miners compared with other [surface] miners,” after adjusting for tenure of mining. Surface miners from the region also had “significantly higher” rates of progressive massive fibrosis, the most severe form of CWP, and opacities indicating silicosis. In 2002, NIOSH found an even more striking disparity: the rate of CWP among Central Appalachian surface miners was almost four times that of other surface miners. NIOSH found that 3.7 percent of working surface miners examined from the four states where mountaintop removal is carried out had CWP, compared to one percent of surface miners from other states. To put this in perspective, of 1,221 surface miners examined from West Virginia, 58 had CWP; of 1,252 examined in Wyoming, only 3 did.

Bill Carter, who worked as a trucker on mountaintop removal sites for 25 years and now has black lung disease, said that he would haul excavated rock up to two miles before dumping it. “The dust is just grinding your throat,” he said. While nearby communities are not exposed to the same concentration of dust as miners, and therefore are not susceptible to same types of diseases, the studies discussed in the previous section analyzing air quality near mountaintop removal sites indicate that residents may be chronically exposed to dust for years.

There are only two publicly available studies on the prevalence of CWP among surface miners because the 1969 Coal Act required regular surveillance of only underground miners’ respiratory health. For decades, NIOSH recommended extending surveillance to surface miners. In the 1980s, for example, NIOSH tests of dust samples from surface mines had shown dangerously high levels of quartz silica. In 2014, the Obama administration extended surveillance to surface miners – a change the Trump administration is currently reviewing. The data collected under that program is not disaggregated by state, but the overall numbers indicate higher rates of CWP among surface miners than the previous ad hoc program had measured.

Dr. Cara Halldin, the supervisor of the Coal Workers’ Health Surveillance Program at NIOSH, explained to Human Rights Watch that one possible reason for the higher prevalence of CWP among Central Appalachian surface miners is that silica – present in the plumes of rock dust generated from blasting and excavating mountains – is more toxic than coal dust, and the combination of both may be more toxic than each individually. She noted that experts are beginning to call the disease Coal Mine Dust Lung Disease to capture this risk. She also said that “drillers and blasters are at the highest risk” for CWP, an observation that comports with the heightened risk of rock dust.

The US Centers for Disease Control and other experts have cited increased exposure to silica-rich rock dust for an unprecedented level of black lung disease in central Appalachian miners over the past two decades. They offer several possible explanations: thinner coal seams and new types of mining that require cutting through more rock than in the past; advances in technology that crush rock into finer dust particles; and longer working hours. In 2016, a new rule lowered workers’ permissible exposure to silica dust, adopting a recommendation NIOSH has been urging for years, but the Trump Administration delayed its implementation while the industry challenged it in court. The court upheld the rule and on July 6, 2018, the Mining Safety and Health Administration began to solicit information to review the rule. But what the scientific analysis of the air in mountaintop removal communities makes clear is that it’s not only miners whose health is at risk from the dust: people living near mountaintop removal breathe these tiny, toxic particles, too, likely at serious risk to their health.

Water Contamination

Sherry Walker lives in a hollow near Coal Mountain, a 10-minute drive away from Nicole and James Cook. Sherry, who lives with her granddaughter, shares a well with her son, Jason, who lives next door. According to Sherry and Jason, the water started to become discolored around 2011 and over the years their 100-foot well slowly dried up so that today they have no choice but to bathe and wash their clothes and dishes in water pumped from the creek behind their house – a creek that they assume is polluted by the mountaintop coal mine, as well as from sewage piped directly into it by neighbors living upstream. Jason said he’s saving up to contract the drilling of a new well, which costs $2,500, but there’s no guarantee that the water would be safe to use, especially since that is the price for a well around the same depth as the one that dried up. He had hoped to use a small bank loan for the well, but he needed the money to fix his mother’s roof. “I had to choose between a roof and a well. I’d rather have a roof over my head than water coming out of my faucet.”

Sherry, along with 15 other families who live nearby, sued the coal company operating the mine, Dynamic Energy, a subsidiary of a company that at the time was owned by the governor of West Virginia, Jim Justice. They lost the case, but 10 more families have sued and are awaiting trial. Human Rights Watch spoke to seven families who live near Coal Mountain and all shared similar stories: they have lived in these homes all or most of their lives and had clear well water until it turned orange or black some time after the mining began. Claims such as these –that coal mining has contaminated drinking water – are common in the coalfields of Appalachia and are not unique to mountaintop removal. Examples abound of people who believe their water – and health – has been harmed by coal mining. The risk of coal processing chemicals polluting drinking water sources garnered attention in 2014 when around 7,500 gallons of a chemical used to clean coal, called MCHM (4-methylcyclohexanemethanol), spilled into the Elk River one mile upstream from a West Virginian drinking water intake for 300,000 people.

But the risk of water pollution is inherent to coal mining, since it can trigger changes in the chemical composition and flow patterns of surface and groundwater. There is always the risk that polluted surface water can contaminate groundwater, and vice versa, but, according to a US Geological Survey report on water flows in West Virginia, underground mining can increase that risk by “induc[ing] changes in natural patterns of groundwater flow resulting from interconnected mine voids.” Where streams flow above abandoned underground mines, there is “increased potential” for fractures that “can provide a pathway for stream water to enter abandoned-coal-mine aquifers.”

The vulnerability of groundwater to contamination is therefore “based on the presence or absence of potential contaminants in the area overlying the mine or in a stream that crosses over the mine.” In other words, in areas where there are underground mines, there is heightened risk that pollution from streams will contaminate groundwater. The problem is that mountaintop removal severely contaminates streams.

In 2002, the EPA estimated that if all existing permits were implemented, by 2012 valley fills of excavated rock would have buried an estimated 2,500 miles of stream. According to a study conducted by Duke University environmental scientists, the erosion from valley-fills, acid drainage from the mine sites, and coal processing chemicals have contaminated at least as many miles, impacting nearly one-quarter of southern West Virginia’s rivers.

The health risks of groundwater contamination are discussed in further detail below, but people who rely on private wells may be especially vulnerable to exposure because there are no state laws mandating water quality standards and testing of well water or programs to monitor for mining-related contamination, so they could be unaware of contamination that is going untreated. Users of public water supplies may also be at risk, but there is often more source water protection for public supplies, the water is treated and its quality monitored before being delivered through a public system.

Ecological Impact on Streams

Junior Walt has been fishing, hunting, and picking ginseng around mountains now being mined for as long as he can remember; he said he killed his first deer when he was four years old on Cherry Pond Mountain, which has since been blasted for coal. Echoing many others, he told Human Rights Watch that at 27 years old he can already see the devastation of the streams. “We used to have freshwater mussels. That died out in my lifetime. We used to have hellbenders”—a giant salamander—"now they’re few and far between.”

Studies conducted by the US Geological Survey and a team of Duke University scientists led by Dr. Emily Bernhardt, a specialist on watershed biogeochemistry, confirm Junior’s observations. The ecoregion is home to 10 percent of the world’s global salamander and freshwater mussel diversity, but mountaintop mining has precipitated a sustained drop in their populations. In over a dozen studies, they have also found that degraded water quality has had a toxic effect on the fish, birds, insects, and even bacteria. The US Geological Survey found that impacted streams “have less than half as many fish species and about a third as many fish as non-impacted streams,” a finding echoed in several other studies. Many surviving fish were also smaller in size and some were visibly deformed with spines shaped like an “s.” Insect populations around impacted streams are also much less diverse; one study found virtually no mayflies downstream from a mined area, an insect abundant only one kilometer (0.6 miles) upstream and particularly vulnerable to environmental stress. Duke University biologists found that even the bacteria communities of impacted streams have lost taxonomic richness.

The EPA conducted water analyses of streams near mountaintop removal and found that the contamination was wreaking havoc on these ecosystems. Numerous tests by the agency found exceptionally high levels of conductivity, an indication of water’s ability to conduct electricity that is often used as an easily measured indicator of water quality because it is affected by the presence of heavy metals, salts, and other inorganic compounds. The EPA identified 300 micro-Siemens per centimeter (µS/cm), a unit to measure electric conductivity, as the upper limit necessary to preserve the quality of Appalachian streams, but impacted streams measured several times this amount and often well above 2,000 µS/cm.

These streams’ increased conductivity correlates with the presence of “constituents typically derived from rock and coal weathering,” such as sulfates, selenium, iron, manganese, calcium, and magnesium, according to Duke University biologists. The process of excavating rock and depositing it into valley fills causes these minerals, which are naturally present in the rock, to leach into nearby streams; the minerals may then cause erosion that releases other metals harmful to stream’s ecosystems. The biologists blame high levels of selenium in particular for the damage to aquatic life. Selenium is a heavy metal beneficial to animal health in small doses but toxic in higher concentrations, and it bioaccumulates, so chronic exposure to even a small amount can be dangerous. The EPA recommends a limit of 3.1 micrograms per liter (µg/L); streams impacted by mountaintop removal have as much as 20 µg/L and high levels of the metal were detected in fish.

Particularly troubling, for several of the markers of degraded stream quality, Duke University biologists found there was no difference between active and reclaimed sites, indicating “that the extensive chemical and hydrologic alterations” cannot “be offset or reversed by currently required reclamation and mitigation practices.” Moreover, many of the impacts on wildlife were found in the rivers into which these streams run, meaning that the pollution persists even when diluted with waters unimpacted by mining. And according to the mining engineer Jack Spadaro, “once the groundwater is contaminated, it can take 400 to 500 years until it’s drinkable again.”

Health Risks to Nearby Communities

The metals and other pollutants devastating streams’ ecosystems can also be dangerous to humans. There are few scientific studies examining communities’ exposure to water contaminated by mountaintop mining or associated health risks. Respiratory, digestive, urinary, and breast cancer mortality rates increase in areas of central Appalachia with ecologically damaged streams, according to one study by a US Geological Survey biologist and Hendryx examining linkages between polluted streams and human cancer rates. However, the study did not isolate exposure to contaminated water and whether it may cause health problems.

A number of the metals found in streams contaminated from mountaintop mining pose health risks if ingested. According to the World Health Organization, selenium in high doses can cause gastrointestinal problems and harm skin, teeth, and hair; it also had adverse reproductive impacts in animal studies. Arsenic is also present in some coal formations and may leach from valley fills into nearby streams and groundwater. Arsenic exposure can affect nearly every major organ and system in the body and increases the risk of cancer of the liver, kidney, bladder, and lungs; respiratory diseases; and cardiovascular diseases.; It is also associated with increased infant mortality and impaired cognitive development in children.

Dr. D. Scott Simonton, an environmental engineer with an expertise in the health impacts of mining-related water contamination, stressed in an interview with Human Rights Watch that there is insufficient research into health effects of mining-related water contamination. However, his and others’ research indicates that even in cases where mining pollution consists only of metals that are not considered by the EPA to be unsafe, they may nonetheless pose health risks at extremely elevated levels, in combination with one another, or in children, older people, or those who have preexisting health problems.

Manganese, found in streams impacted by mountaintop removal as well as in the Coal Mountain families’ well water at alarmingly high levels, has been linked to neurological damage. For example, a study examining children aged 11 to 13 who were exposed to drinking water with 241 parts per billion (ppb) of manganese exhibited adverse neurological effects compared to a control group of children matched for age, sex, grade, family income and parental education. The EPA does not have mandatory limits on manganese in drinking water, but the US Centers for Disease Control lists exposure to manganese in dust or fumes as an occupational hazard that can damage the lung, liver, and kidneys. The EPA also doesn’t set mandatory limits on iron, but an epidemiological study in Norway found that the relative risk of developing inflammatory bowel disease, including Crohn’s disease, “increased by 21 percent when iron content in the drinking water increased by 0.1 mg/L.”

Sulfates, found in streams near mountaintop mining and considered “a reliable indicator of mining impacts,” are not regulated by the EPA although they can produce toxic air pollution by transforming into hydrogen sulfide gas when exposed to air, which gives off a unique “rotten egg” odor many residents described to Human Rights Watch and which was apparent during our visits to impacted homes. According to the WHO, exposure to the gas can negatively affect respiratory and brain function, and may be associated with an increased risk of miscarriage.

Most studies analyze the occupational risk of acute, short-term exposure, rather than chronic low-level exposure in homes, but adverse health impacts, especially for sensitive people such as asthmatics, have been found after short-term exposure at concentrations as low as two parts per million (ppm). The WHO recommends limiting exposure to an average of .11 ppm over a 24-hour period. Simonton measured concentrations of as high as one ppm in the air of homes in central Appalachian mining communities with high levels of sulfates in their well water – and as high as 21 ppm in a shower stall with running water and 17 ppm over a kitchen sink when the faucet is running.

Sulfates and other metals found in impacted streams can also cause lead pipes and joints to erode, which may explain the presence of lead in several of the wells near Coal Mountain. Moreover, Human Rights Watch is unaware of any study that has examined the presence of chemicals from coal processing, diesel exhaust, explosives, and other mining-related activities, many of which are unregulated, in surface or groundwater near mountaintop removal mining activities.

The Case of Coal Mountain The private wells tested near Coal Mountain, Wyoming County, West Virginia, all had alarmingly high levels of heavy metals consistent with coal mining pollution, such as iron and manganese, that made them unfit for use, although residents continued to use water from these wells for bathing and cleaning. For example, the Walkers’ well, before it dried up, had more than 25,000 parts per billion (ppb) of iron, a level astronomically higher than the EPA’s recommended limit of 300 ppb to preserve the taste and clarity of the water. Manganese levels in all the wells exceeded the EPA’s recommended limit of 50 ppb to preserve water quality, and many were several times that amount. Nearly all had lead in their water, including four above 20 ppb, the level at which the EPA is required to action for public water systems. Six of the wells also had unsafe levels of arsenic. The families living near the Coal Mountain mine with whom Human Rights Watch spoke said that they worry constantly about the potential health impacts of contamination in their water. While they all said they stopped drinking or cooking with the water from the contaminated wells, they continue to use it for bathing and brushing teeth (except the family whose well dried up). “What’s the difference between consuming it and breathing it?” one person asked rhetorically, referring to the water from steam in a bath or washing dishes. Many also worried that they may have been drinking contaminated water for years after the mining began but before it turned orange from iron. Indeed, both arsenic and lead are colorless, tasteless, and odorless, and arsenic cannot be eliminated using conventional household filters. Jason told Human Rights Watch he suspects that bad water may be responsible for his Crohn’s disease, a chronic inflammation of the gastrointestinal tract that studies suggest may be influenced by environmental factors, including iron in water. Lending support to his concern, Jason said his symptoms “started around 10 years ago, I lost 90 pounds in three months.” At that time, he was still drinking water from his well. His health only began to improve, he said, in 2014, when the court ordered the coal company to provide an alternative water source to all the families who had sued while their case remained pending. But the coal company took back the water they had provided after the first group of 16 families lost their case, and he worries his health problems will worsen.

The High Cost of Bad Water

Several metals found in mountaintop removal-impacted streams, such as manganese, iron, aluminum, and sulfate, can severely degrade water’s taste, smell, and color. Elevated levels of all four of these metals were found in wells near Coal Mountain, rendering the water unusable notwithstanding its health risks. Residents describe the costs associated with losing their water source as financially devastating, especially since they were already struggling to make ends meet.

Rose, a woman in her sixties who lives near the Walkers and asked that we don’t use her real name because she is afraid of retaliation against her relative who is a miner, told Human Rights Watch that she worries most about the cost of having to buy drinking water for the rest of her life. She has drinking water delivered in five-gallon jugs that cost $6 each, and uses one or two jugs a week, she said. She also buys $6 bags of salt each week to filter her well water for household uses. Even with the filter, she needs to regularly replace her clothes, pipes, faucet, washing machine, and anything else that comes into contact with water, because it stains, corrodes or otherwise ruins her belongings. She lives on a fixed monthly income of less than $1600 and “every little bit hurts,” she said. Rachel Belcher said that she tries to save money by filling up bottles at a spring around eight miles away, but she often ends up purchasing water to save time. “It takes away from grocery bills and clothes for my granddaughter, who is still in school,” she said.

Others, like Jason, described saving up to dig deeper wells with they can hit a safer source of groundwater deeper down – a financial risk, since there is no guarantee that the water quality will be better. But perhaps the biggest cost is the steep decline in a property’s value. “If you try and sell it, who is going to buy it?” Jason said, when asked if his family ever considered moving. “I was raised in this hollow. My father, who was a miner, is buried right there,” he said, pointing to a small plot of graves behind his home. Sherry spoke about how much her husband loved mining. “I have nothing against coal mining. It’s my family’s trade; it’s our way of life. But if you damage someone’s property, take responsibility,” she said.

Private Wells

As the Coal Mountain families suggest, residents who rely on private wells are especially vulnerable to exposure to contaminated water given the lack of any government support for monitoring or treatment of private wells—federal water quality standards do not apply to them. As already noted, the risk of polluted streams contaminating groundwater increases in areas with a long history of underground mining, which is the case in nearly every county where mountaintop removal is prevalent. In fact, scientists who discovered lung cancer clusters in areas of Kentucky where mountaintop removal is prevalent suspected contaminated well water as a possible culprit.

In one of the few studies seeking to measure the contamination of private wells from surface mines, the US Geological Survey tested 58 wells near surface mines in Pennsylvania and West Virginia. The study, published in 2006, examined the long-term impact of water contamination and identifi