Grass Roots Environmental Effort Newsletter
Blackwater Canyon Update
CRITES SCRAPS BLACKWATER LAND SWAP
CHARLESTON--John Crites, owner of Allegheny Wood Products (AWP), has pulled
out of the "swap deal" which involved trading small parcels in the
Blackwater Canyon for timberland within the Monongahela National Forest.
"It seems Mr. Crites has been bargaining in bad faith and is now showing
his true colors," said Judy Rodd of the West Virginia Highlands
Conservancy's Blackwater Canyon Committee. "He has tried to pacify the
public with a possible swap while continuing to degrade the Canyon with logging.
Rumors have been circulating for months that Crites wanted exorbitant prices for
the trade lands. West Virginians are outraged!"
"Mr. Crites is loosing all credibility. All he has given us is empty
rhetoric and broken promises. He said he would protect the Canyon's endangered
species, yet he is logging right now without any habitat conservation plan in
place," said Vivian Stockman, also a member of the Conservancy's Blackwater
Canyon Committee. "For over a year the US Fish and Wildlife Service has
asked him to produce a plan, but he keeps hedging.
"He has said he wouldn't cut within the viewshed of Lindy Point, yet he
has notified the Division of Forestry of logging operations there,"
Stockman said. "Just recently in the Parson's Advocate he said the lots
staked out on the Canyon rim were for appraisal purposes, yet on CBS he said he
wouldn't rule out the development of condominiums. It's hard to believe anything
In a statement obtained by the Charleston Gazette both AWP and the Forest
Service announced that, "Although the first few months of our discussions
were promising, we are both disappointed that we have so far been unable to
resolve the remaining significant issues surrounding this proposed
The Forest service and AWP had signed a Memorandum of Understanding (MOU) in
December of 1997 in which Crites agreed to discuss swapping 625 acres of the
Blackwater Canyon for a "value for value" trade of Monongahela
National Forest land. Surveys of possible trade lands and appraisals of AWP and
Forest Service land were done last year.
"We are relieved the swap has been scraped," Bill Ragette of the
Conservancy's Public Lands Committee said. "Land exchanges like this are
historically a bum deal for the public. We continue to advocate that the Canyon
be brought into public ownership through purchase or condemnation at fair market
compensation to the landowner. The scrapping of the MOU clears the way for a
real land protection initiative such as the establishment of the Blackwater
Canyon National Park."
Allegheny Power owned nearly 3,000 acres of the Blackwater Canyon until
February of 1997. Up until the time of the sale the public had free access to
the Canyon for recreational activities including world-class whitewater rafting,
hunting, hiking, mountain biking, camping and bird watching. Lindy Point, an
overlook of the Canyon, was often featured on state tourism brochures and
AWP purchased the Canyon for $5 million dollars from a developer who paid
Allegheny Power $4.7 million. AWP is currently logging in the Canyon.
Landmark Settlement Imposes New Limits On Mountaintop Mining
by Cindy Rank, WV Highlands Conservancy
WV citizens and the federal government have reached a landmark settlement of
a portion of the lawsuit challenging permits allowing mountaintop removal
mining. Under the agreement the federal government formally adopted new
long-term and interim policies for considering applications to conduct
mountaintop removal mining nationwide. The federal government will prepare a
comprehensive environmental impact statement (EIS) of the entire mountaintop
removal mining process, routine approval of such mining applications will stop,
and all significant applications will be examined in detail for their potential
The federal government has agreed with us that business as usual poses
unacceptable environmental risks and cannot continue. While we are pleased with
this victory, it is only the first step in a continuing effort to restrict this
devastating form of mining.
The key provisions of the agreement are:
1. Over the next two years, the U.S. Environmental Protection Agency, in
coordination with other federal and state agencies, will prepare a comprehensive
EIS analyzing its policies so that it minimizes the adverse environmental
effects of mountaintop removal mining. There has never been a comprehensive
analysis of these mining operations before, even though they have filled nearly
1000 miles of West Virginia streams with mining waste. A mining engineer, a
biologist, and a third expert recommended by plaintiffs will help prepare the
2. In the interim, until the EIS is completed, the U.S. Army Corps of
Engineers will discontinue its practice of routinely issuing Nationwide Permits
for the filling of streams and valleys with mining waste. Instead, for mines
that impact watersheds of 250 acres or more, or for mines that impact a smaller
watershed but cause more than minimal impacts, the Corps will have to issue or
deny individual permits based on much greater scrutiny of environmental impacts.
Hobet's Spruce Fork Permit Exempted, Approved with modifications
At the same time, however, responding to economic and political pressure, the
federal government has refused to apply the new policy to Hobet Mining Co.'s
huge proposed Spruce Fork mine near Blair, West Virginia, where some plaintiffs
in the lawsuit, Bragg v. Robertson, have lived for generations. The plaintiffs
will fight this attempt to make Blair a sacrifice zone, because there is no
principled basis for excluding the Hobet mine from the new policy.
"The new policy is likely to help in the future, but it doesn't
protect Pigeonroost Hollow, where my family has lived for over 200 years,"
said James Weekley, one of the plaintiffs. Pigeonroost Hollow is one of the
valleys that would be filled with mining waste from the Spruce Fork mine.
"It is fundamentally unfair that the same people who helped bring
about this settlement by fighting the Spruce Fork mine may now be unable to
benefit from its provisions," said Patricia Bragg, another one of the
plaintiffs in the suit, "We cannot accept this unfairness and
discrimination, and will ask the district court to prevent this mine from
operating until it complies fully with federal and state laws."
By exempting the Spruce Fork mine from this policy, the government has
sacrificed the public interest and the citizens in Blair to the economic
interests of a single, powerful mining company.
State not off the Hook
The settlement agreement only applies to the three claims that plaintiffs
asserted against the federal defendants in the lawsuit. Plaintiffs have also
asserted twelve other claims against the WV DEP. Those claims allege that DEP
has violated federal strip mining laws by failing to ensure that mountaintop
removal mining permits meet minimum federal requirements. DEP is not a party to
the settlement, and plaintiffs will continue to prosecute vigorously those
claims against the Spruce Fork permit and other permits.
It is time now for major reforms at DEP. The cozy relationship between
regulators and the coal industry must end. DEP's job is to protect the
communities and the environment, not to serve powerful coal industry interests.
Minimum federal standards have been routinely misunderstood, ignored, and
violated for years. The federal Office of Surface Mining, which is supposed to
oversee and prevent these problems, has completely dropped the ball. We will
continue with our case against DEP to vindicate the citizens' rights guaranteed
more than 20 years ago by the Surface Mining Act.
Editor's Note: In a letter dated 12/22/98 Michael McCabe, the
director of Region Three EPA, explained the effects of their new policy on the
Hobet Permit this way: "As part of this comprehensive, long-term approach
to deal with environmental impacts, and following our work with Arch Coal to
significantly scale back its valley fill plans, I decided to lift the EPA
objections to the Hobet Spruce #1 Mine water quality permit. Specifically, the
Hobet Mine Permit was reduced from a 13 year operation to a 5 year project; two
of the five valleys will not be filled at all and two other fills were
substantially reduced in size; and any future work at the site will have to go
through a new permit process with a complete environmental assessment and public
We're going to Stop Removing Mountains in West Virginia
A good friend and Council board member living in one of the Panhandles
recently told me that he thought the mountaintop issue was pretty much resolved.
He based this on the spin that his local media were giving on MTR. The
combination of the Governor's Task Force, EPA interference in the permitting
process, and the apparent willingness of the legislature to undo the damage it
did in passing the infamous S.B. 145 (Mitigation bill) are the reasons for this
Coupled with Arch Coal Co's million dollar advertising campaign (including
its recent sponsorship of WV Public Radio's news broadcasts), it's no wonder why
our panhandle friend thinks the problem has faded. The battle to end removing
mountains has just begun. The Governor's Task Force was obscenely dominated by
coal interests. Nothing contained in the panel's recommendations caused coal any
serious heartburn. Assuming that EPA finds the backbone to significantly affect
new mountain top permitting, the results will take a long time to alter energy
production practices. The repeal or amending of the Mitigation bill means
nothing. Legislators will make a grand production of undoing what they did last
year but it will be a public relations ploy and will not adversely affect
mountaintop removal at all.
We're going to stop removing mountains in this state. It won't be done
overnight but it must stop soon. How soon? That depends on all of us and
hundreds of people we are yet to meet. The end of MTR will be proceeded by a
series of lawsuits, new found bureaucratic cojones, legislative initiatives,
grassroots demonstrations, continued media coverage and, hopefully, the
cooperation of economic development officials in the coal fields. The sooner we
do it the better. It is our challenge that the elimination of MTR be achieved in
the context of social justice towards coalfield citizens, sensitivity to local
and state economics and maximum preservation of the environment.
A year ago this week, Governor Underwood in response to a statement I made
about the need to plan towards a post-coal economy said "I'm sick of his
bullshit _ I can't wait for the post-Steenstra era". Apparently Cecil
didn't like either the speech or the speaker. The remarkable thing in the
exchange was that many of us have been talking about a post-coal economy for
years but the Governor acted as though he had never considered the concept
before. Although Cecil probably still doesn't get it, it is interesting to see
the Governor's own MTR Task Force, coal field economists, Marshall U. President
Wade Gilley and even coal/timber baron Buck Harless are now giving at least lip
service to visualizing a West Virginia without coal.
As we move toward abolishing MTR we must provide the conscience and the
direction of the post-coal economy. Mountaintop removal is wrong. It is wrong
from an environmental, social justice and economic perspective.
The people who will lose their jobs because of the abolition are as much a
victim of the inherent evils of MTR as those who suffer the consequences of
living next to a mountain in the act of decapitation.
Why should those of you who live in the panhandles or counties without active
coal operations care enough to join in the movement to abolish mountain removal?
The green side of you knows the environmental reasons to oppose chopping off
mountains, covering their bare stumps with broken rock and a few blades of hardy
grass. Green common sense tells you of the folly of covering hundreds of miles
of streams with broken rocks and spoil. The political realist in you knows that
we cannot trust our governor and his government to do any thing more than enable
and encourage this activity. The small "d" democrat in you understands
how the Coal industry has become both the major cause and the symbol of the
erosion of basic democratic rights in our state by its cash-fueled dominance of
our political process.
The Judeo-Christian part of you knows that a practice that places the profit
of a few above people and creation is evil personified. Your inherent economic
common sense tells you how foolish it is to mortgage the future to finance
short-term gains. Your sense of responsibility calls on you to act to stop the
intergenerational theft that is MTR.
We are going to stop removing mountains in West Virginia. A lot of time,
grief and pain will be expedited before the last MTR permit is issued, yet it is
my prediction that because we connected the dots of social justice,
environmental protection and economic realities _ we will have grown as a
movement and a voice in West Virginia policy making. If you feel like cranking
up your MTR activism, I've included some chores.
Editor's Note: Watch for a list of what you can do to stop Mountain Top
Removal in the first issue of the Legislative Update coming out next week. Make
sure you get the Update by renewing your membership now. See the renewal slip on
the back page.....
Mt. Top Mining and Mitigation
by Mike Withers
On Sunday, December 13, 1998 the Joint Committee on Government Operations
received a Preliminary Performance Review of the DEP's Mine Mitigation Program.
The report covered the projected impact of S.B.145 using historical data. The
report was prepared by the Performance Evaluation and Research Division of the
Office of the Legislative Auditor.
The report examined the affects of S.B.145 on the mitigation program. It
looked at the difference in compensation if S.B.145 had been in effect over the
last 47 mitigation agreements. The report gave this conclusion; "For
agreements executed between March 9, 1996 and June 14, 1998 alone the state
would have incurred an 87% loss in compensated agreements, a 65% reduction in
compensated acreage, and a 47% reduction in monetary compensation. Until
recently, new permits were not being issued because of a moratorium by the Army
Corp of Engineers. Currently, mitigation agreements are being executed according
to a hybrid of old guidelines and S.B.145. Only agreements which permanently
impact a watershed of 480 acres are being executed under guidelines contained in
S.B.145. In addition, an impending court decision could dramatically alter the
future of surface mining and it's regulation."
Barbour County Politicians Are at it Again !!
It is so ironic that the citizens who worked the hardest to give referendum
rights to all West Virginians fighting large solid waste facilities missed the
deadline to exercise their own referendum rights because of sneaky local
officials. The good news is that the county is mobilizing to stop this latest
dumb idea. Since the Medical Waste Referendum was passed in 1997, Citizens in
both Mineral and Morgan Counties have rejected the same proposal that Barbour
Barbour County needs help. Believe it or not, after defeating a megadump
proposal back in 1990, citizens there missed the publication in September of a
pre-siting notice for a 75-ton per day commercial infectious waste treatment
plant. Local officials including Philippi City Manager, Joe Mattaliano with his
city council, county commissioners , and the Development Authority, have teamed
up with developer, Doyle Payne from Virginia Beach, Va. and Joe Wyatt from the
WV Bureau of Health to promote this as a great economic opportunity for Barbour
With absolutely no publicity about the proposal during the 60-day referendum
period in September and October, citizens were awakened by an announcement of a
technical review hearing to be held on December 9th. Since then there has been a
public outcry. County and city officials are lending deaf ears and blame
citizens for not protesting earlier. State department officials, who say they
have no control over the referendum process, are now considering public comment
as they continue with the permitting process.
by Tom Degen
Government Organization subcommittee C was presented with a draft blasting
bill. The bill creates an office of explosives and blasting which will regulate
all blasting relating to coal and non-coal surface mining and reclamation. The
new office is also to establish a procedure for mediation of blasting
In its current form, the bill does not give the agency specific instructions
to implement many of the changes that blasting victims requested. Instead, it
authorizes the DEP to implement them, if it chooses to, during rule making.
One big problem with that approach is that the law, at §22-1-3a, only allows
the DEP to be more stringent than federal regulations if the director provides
specific written reasons demonstrating why the provisions are necessary, or
relies upon stated legislative findings, policies or purposes.
Several of the provisions that blasting victims have asked for are more
stringent than federal regulations. If the committee, in the body of the bill,
does not give stated findings, policies, or purposes directing the agency to
implement the changes requested during the interim process, then it may appear
that the committee has acted upon the problem by passing a bill, but in reality
the problem will have been passed on to the agency to handle at the director's
Between now and the January interims (Jan. 10-12), members of the
subcommittee should be asked to amend the bill to direct the agency to implement
the changes we have asked for, such as moving mines back to 1,000 feet from
homes, reducing ground vibration from blasting to one half inch per second,
requiring site specific blasting plans for blasts within two thousand feet of
homes, reducing the air blast limit to 110 decibels, and creating a presumptive
liability for damage within one mile of blasting.
Tires, To Burn or Not to Burn
by Tom Degen
Judiciary Subcommittee A and Finance Subcommittee E have both developed draft
tire bills. They both establish mechanisms and funds to clean up tire piles and
create waste tire collection centers in every county.
Both bills establish a manifest system for tracking waste tires and impose a
new fee on new tires sold, and a registration fee for tire haulers. The
Judiciary bill also creates a licensure fee for tire businesses, processors, and
monofills, and allows tire retailers to charge more than the present $1.50/tire
if actual disposal costs warrant it.
Both bills take steps to encourage tire recycling, the Finance bill by
creating grants to encourage the use of processed waste tire materials, and the
Judiciary bill by creating an investment tax credit for 10% of the cost of
equipment for recycling tires. The Finance bill considers the burning of tires
to be eligible for its recycling grants, and has discretionary language that
could allow a much higher percentage of the funds to go towards these grants.
The Finance bill creates a waste tire advisory committee that meets twice a
year and makes recommendations annually to the governor, speaker, and president.
Both bills require some kind of permitting, but do not require the agencies
to include public participation in the rules they are to develop to implement
the bills. The Finance bill even gives the office of waste management the
discretion to not require permits at all for pilot projects burning tires.
Both bills allow burning of tires, the Finance bill even considers burning to
be recycling. This is a reversal of present policy, and could result in scarce
recycling funds going towards burning instead of higher use recycling. Speaking
of scarce recycling funds, the Judiciary bill exempts waste tires from the solid
waste assessment fees, which fund two recycling grant programs and the landfill
The bills differ in which agency administers which aspects of their programs,
so the inevitable agency turf wars will probably obscure the real issues, which
After hearing that tire piles are public health threats due to mosquito
breeding and potential fires, the legislature is rushing to solve the problem by
siting tire collection centers in every county and encouraging the burning of
tires. The collection centers will be regulated, but there is no language
concerning right of entry or inspections. The legislature has been assured that
tires burn cleaner than coal, but very few test burns look at the hazardous
emissions that are known to increase with tire burning. There is no test burn
data in WV concerning these "non-criteria" pollutants that tires
generate. The Office of Air Quality has data on only one WV test burn of tires,
and it showed that particulate emissions would increase by 50 tons per year, and
would trigger a permit modification.
One bill authorizes the use of scrap tires as a bulking agent for compost.
Since compost has acids that may release the considerable amounts of zinc in
tires into the compost, this is not protective of public health. It is
protective of Pasquale Mascaro's northern panhandle sludge composting
Public participation-by stating that waste tire processing sites are not
solid waste facilities, these bills remove the current provisions of local
control through solid waste authority certificates of local site approval,
siting plans, and referendum. The provisions for public hearings on permits,
tonnage caps and certificate of need are likewise inapplicable. Neither bill
requires the agencies to include public participation in the rules they are to
develop for the bill. In other words, public participation and local control
will be eliminated.
Nuisance provisions-although expensive, one common law remedy that has always
been available to citizens is the right to bring a suit against a facility for
creating a nuisance. The Finance bill specifically instructs the DEP to
establish limits below which tire collection and storage sites would not be
considered a nuisance. This leaves the public totally dependent on the DEP for
enforcement, yet there is no authority for right of entry or inspections of
these sites that will be a potential public health threat for fires and
Industry or Government?
It is my feeling that the tire industry should be the party establishing a
tire collection infrastructure, but the legislature has not even considered that
option. Either the DEP or the SWAs will do it. SWAs would be preferable because
they are local citizens and a forum for the public to participate in solid waste
decisions. However, the SWAs are given specific instructions on what to do, and
there is little local control left, especially since tire processing facilities
have been declared not to be solid waste facilities.
Without adequate funding, the program won't work. Already the new car dealers
have gotten themselves exempted from the fees in the Judiciary bill. This
significantly reduces the pool of money that funds the program and erodes
consensus that may have been developing for the bill.
Uses other than burning-neither committee has taken action to require tires
to be used in asphalt or engineering applications, or to require retreads on
state vehicles. These and other options are noticeably absent.
See Tire Burning Fact Sheet for
"We Are All Sacred People Living On Sacred Ground"
The National Executive Board of the Methodist Federation for Social Action
will be holding a meeting on January 30th at the Asbury Methodist Church on
Elizabeth Street in Charleston. In conjunction with this meeting, a program
sponsored by the West Virginia Chapter - "We Are All Sacred People Living
On Sacred Ground" will be held with the following sessions beginning at
9:30 a.m: (1) Racism, (2) Mountaintop Removal, (3) Christian Right Wing, (4)
Understanding the Political Agenda behind the Pseudo Morality. A $5 donation for
box lunch is suggested. A break to attend the Mountaintop Removal Rally at 1:00
is scheduled. Also, at 6:30 p.m. an Awards Banquet will take place. OVEC is
among the recipients for their environmental work. A $20 donation is suggested.
For more information, call the Asbury Church at 342-7811.
Here we go again! 1999 Legislative Session begins on Wed, January 13th.
And we need your support!!! Please, please, please - if you haven't renewed
your membership - now is the time! (use the handy form below)
Any other donations - monetary or other (time, food, stamps, quotations,
submissions to Update to name just a few) are most appreciated, eaten and
Below are other activities/needs and ways you can help during the session:
Read your G.R.E.E.N Legislative Update!
Every Friday: G.R.E.E.N. Legislative Update produced. Come to the CAG
office around 4 p.m. to be part of the fun and help us with the mailing!
Lobby For A Day: Get to know your representatives up close. Join us at
the capitol and chat with your Senate or House Reps.
Send us your e-mail address for our new quick response team... you'll
get up to the minute action alerts on public hearings, calls to make in support
or against legislation and other critical actions. E-mail a note to firstname.lastname@example.org
to be on the list.
Join the Phone Tree: Call Chuck Wyrostok at 927-2978 for information.
Come to E-Day! at the Capitol on February 26th from 10:00 till 3:00
p.m. This will be the 11th Annual E-Day!
E-Day Fundraiser: Stick around after the events at the capitol
and treat yourself to the 11th annual Fun(d)-raiser at The Empty Glass on
Elizabeth Street. The festivities begin at 6:00 p.m. Includes great music, food
Exhibit at E-Day: If your group or organization would like to
participate contact Denise Poole at 346-5891 or 522-8409.