G.R.E.E.N.
Grass Roots Environmental Effort Newsletter

January, 1999

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 he says."

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 exchange."

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 videos.

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 environmental impacts.

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 EIS.

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 involvement."

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 alarming misconception.

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.

Norm Steenstra

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 now faces.

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 County.

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.

Blasting Bill

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 complaints.

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 discretion.

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 closure fund.

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 are:

Public Health

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 mega-facilities, though.

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 mosquitos.

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.

Funding

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 more information.

"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.

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