The Appalachian Mountain range dates back 300 million years. Its coal is the residue of peat bogs formed in tropical coastal swamps when there was a single supercontinent, Pangaea. But it takes only a matter of months to tear down a mountain peak using explosives and giant excavators. The technique is both faster and less labor-intensive than underground mining, and allows profitable access to thin coal seams that otherwise might not be worth harvesting. Since the mid-1990s, the coal industry has cut a swath of devastation through Appalachia’s remote, coal-rich highlands, one of the nation’s most dramatic cases of environmental devastation and regulatory failure.
The fate of the peaks has drawn international attention, but what goes on in the valleys is in many ways more significant. Each spring, the rain that falls on Appalachian mountainsides gathers into thin rivulets, mixing with spring water and groundwater. These streams, often no more than a foot wide, teem with microscopic, insect and animal life that is the foundation of the forest and river food chains and biodiversity. Plug up those intermittent and ephemeral streams with mining debris, and the ecological fallout extends far beyond the edge of the valley fill, into the surrounding forest and the larger perennial streams and rivers down the mountain.
A valley fill, for instance, profoundly alters forest hydrology. When the rainwater hits a valley fill instead of a stream bed, it filters through broken shale and sandstone before flowing out at the bottom. Ordinary minerals liberated from deep inside demolished mountains – heavy metals such as selenium and magnesium – infiltrate it and flow downstream.
During the Bush years, government scientists produced a growing pile of studies that show how valley fills foul waterways. FWS biologists found that heavy concentrations of selenium in West Virginia’s Mud River, downstream from the huge Hobet 21 mountaintop mine, were causing deformed fish. A 2008 EPA study showed that a huge increase in “specific conductance” – the concentration of electricity-conducting metallic ions – immediately downstream from valley fills was wiping out entire populations of mayflies, a ubiquitous species whose disappearance indicates broader ecological effects.
Destroying waterways and aquatic life are, of course, illegal. But in the bureaucratic funhouse of mountaintop removal, laws may say one thing while actions point in the opposite direction. By a commonsense interpretation, valley fills violate parts of two federal laws, the Clean Water and Surface Mining and Reclamation Acts. But since the 1990s the coal industry and its allies in government have engineered a series of legal and regulatory workarounds.
For instance, the surface mining law banned mining activity within a hundred feet of a stream if it had a significant impact on water quality or the environment — something that would seem to prohibit actually dumping mining debris into the stream in question. But that rule was never enforced, and in the waning days of the Bush administration it was rewritten to make the practice legal. (Interior Secretary Ken Salazar recently announced plans to revoke that change, but left it unclear whether he intended to enforce a ban on dumping.)
Yet it’s the Clean Water Act that environmental groups have relentlessly focused on, filing a series of lawsuits charging the Corps with failing to meet its enforcement obligations, which state that “dredged or fill material should not be discharged into the aquatic ecosystem” if it will cause “significant degradation to the waters of the United States.” Among other things, that includes disrupting the life cycles of aquatic organisms and the loss of fish and wildlife habitat. Again, it seems logical to assume that burying a mountain stream would meet those criteria. But that’s not the way it’s worked up to now.
Put simply, the Corps evaluates the environmental effects of valley fills using techniques that many scientists criticize as insufficiently rigorous. Scientists and environmental groups also object to the Corps’ approach to mitigation, the notion that you can make up for destroying one stream by building another one. That might mean digging a new stream bed nearby, or “mitigation banking” in which a mining company pays to protect and restore a wetland elsewhere.
But streams evolve in landscapes over the millennia and support complex webs of life that cannot be easily replaced, if at all. Stream creation is outside the realm of current science. There’s no evidence at this point in time it’s even feasible. A typical stream construction technique practiced by coal companies, is crude at best: old drainage channels are converted to “streams.”
This dispute remains unresolved in part because the law divides responsibility for valley fills between the Corps, EPA, the Interior Department’s Office of Surface Mining, and the states. The Corps’ jurisdiction is limited to the stream itself and 100 feet on either side, the OSM oversees what happens on the whole mine site. It’s the EPA’s job to look at the entire ecosystem. And the crossed lines of authority have created a regulatory morass and led to erratic, desultory enforcement. The result has been drift: Coal companies can get permission to demolish mountains and fill streams, but they must also deal with more regulatory hurdles while facing continued uncertainty. It’s this situation, untenable for all involved, that the EPA is attempting to resolve.
But the stakeholders do not seem eager for a compromise. At least up to now, the coal industry has usually gotten most of what it wants, giving it little incentive to negotiate. Environmental groups want to see mountaintop removal banned outright. And the Corps, which must also participate in any negotiation, has jealously guarded its permit authority from what it sees as EPA interference. While Obama’s nominee to run the Corps, Jo-Ellen Darcy, handled environmental issues for the Senate Finance Committee and is well-regarded by environmental groups, the Corps is notoriously resistant to change. Lastly, it’s doubtful that a true middle ground — in which mountaintop removal continues with limited changes and the mountain environment is preserved — even exists.
EPA hopes to limit the damage to stream beds by reducing the size of some valley fills, paying more attention to their placement, and by doing more, and better, stream restoration. Such a negotiated, incremental approach could blunt some of the damage, but may not significantly reduce the vast scale of mountaintop projects. And coal companies will resist major changes, especially in the size of valley fills. A study commissioned by the EPA found that sharply limiting the size of valley fills would also restrict the amount of coal harvested. Capping them at 35 acres — a fraction of the size of the average fill, which can cover hundreds of acres — would reduce mountaintop coal production by 77 percent.