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Legislators Are Going to Unbelievable Lengths to Gouge Clean Water Laws and Cozy Up to Big Coal

Big Coal's backlash over the EPA crackdown on future mountaintop removal operations went from denial and anger to the outright absurd last week, as state legislatures conjured their own versions of a sagebrush rebellion and the new Republican-controlled U.S. House of Representatives passed a sheath of regulatory gutting amendments to its budget bill.

Toxic Runoff from a Valley Fill in Eastern Kentucky

On the heels of its Tea Party-backed coal rallies last fall, the dirty coal lobby couldn't have paid for a better show. As millions of pounds of ammonium nitrate fuel oil explosives continued to detonate daily in their ailing districts and affected residents held dramatic sit-ins to raise awareness of the growing health crisis in the central Appalachian coalfields, Big Coal-bankrolled sycophants fell over themselves from Virginia to Kentucky to West Virginia, and in the halls of Congress, to see who could introduce the most ridiculous and dangerous bills to shield the coal industry.

Their breathless message: "The EPA don't understand mining," as Kentucky’s House Natural Resources and Environment Chairman Jim Gooch, D-Providence, declared to his colleagues.

After an eight-year hiatus of enforcement under the George W. Bush administration, in which an estimated 1,000-2,000 miles of the headwater streams were jammed and sullied by toxic coal waste, along with the destruction of hundreds of mountains and tens of thousands of hardwood forests and the depopulation of historic Appalachia communities, the EPA's return to its true role as enforcer of the Clean Water Act made it a convenient target for Big Coal outrage.

Not for coalfield residents.

"The actions of these state governments trying to circumvent federal law reminds me of the old, discredited tactic of 'nullification,'" Coal River Mountain Watch president Bob Kincaid noted. A resident in the Raleigh County, West Virginia coalfields, he added, "Kentucky's, Virginia's and West Virginia's bought-and-paid-for retro-confederate governments have completely forgotten the lessons of history. They want to pick and choose the laws they obey. Where the EPA is concerned, it's especially bad, since the EPA is all that stands between Appalachia and the utter ruin of what's left of it. As an air-breather and a water-drinker, I take offense to the notion that coal company profits are more important than my children's lives."

Kentucky state legislature had a new take on nullification. Only days afters celebrated author Wendell Berry and 13 other Kentuckians, including a retired coal miner and inspector, occupied Gov. Steve Beshear's office in a protest over the state's 40-year crisis of mountaintop removal mining, the Kentucky state legislature attempted to officially establish a "sanctuary state" for the coal industry that would be exempt from "the overreaching regulatory power.” Kentucky already underwrites an additional $115 million each year in state funds for maintenance and health damages beyond any coal industry revenues.

"My friends, we Kentuckians are in a very sick family," responded Harlan County-raised author George Ella Lyons in the Lexington Herald-Leader. "Our government is owned by big corporations and the result is obscene. Sanctuary -- sacred protected space -- is declared for those who are abusing the basis of our survival. How long do you think we can live without clean water and air?"

Even the Herald-Leader editorial board lectured its legislature:

Smith's resolution would declare Kentucky a "sanctuary state" in regard to EPA regulation. Gooch's bill would exempt from Clean Water Act regulations mining operations involving coal that never leaves the state.

Since coal mining in Kentucky impacts rivers flowing into other states, thus making mining operations subject to regulation under the interstate commerce clause of the U.S. Constitution, neither measure would accomplish a single thing other than letting its sponsor preen and posture in public while wasting other lawmakers' time.

Wasting lawmakers' time, perhaps. But Kentucky state officials were already on overtime in their attempt to divert attention from a stunning circuit court judgment last week that granted citizens participation in the state's gross mishandling of indisputable acts of Clean Water Act violations by two coal companies in eastern Kentucky.

Last fall, clean water advocates from the Kentuckians for the Commonwealth and Appalachian Voices, among others, filed an intent to sue notice against Kentucky subsidiaries of International Coal Group and Frasure Creek Mining for "over 20,000 incidences of these three companies either exceeding permit pollution limits, failing to submit reports, or falsifying the required monitoring data. These violations could result in fines that may exceed 740 million dollars." Embarrassed Kentucky state officials rushed to slap a small fine -- less than 1 percent of the possible fine -- and limited "corrective actions" on the two companies' admittedly blatant violations, and sought to kick off the citizens groups in the suit as "unwarranted burdens."

Judge Phillip Shepherds summed up the key reasons for granting the intervention in his order, stating, "The Cabinet, by its own admission, has ignored these admitted violations for years. The citizens who brought these violations to light through their own efforts have the legal right to be heard when the Cabinet seeks judicial approval of a resolution of the environmental violations that were exposed through the efforts of these citizens. In these circumstances, it would be an abuse of discretion to deny those citizens and environmental groups the right to participate in this action, and to test whether the proposed consent decree is "fair, adequate, and reasonable, as well as consistent with the public interest."

The state's response? Kentucky is now appealing the ruling. Once unwarranted burdens, in essence, always unwarranted burdens to the state. Kentucky residents, meanwhile, are appealing for Gov. Beshear to spend a little more time in their region and keep his promise to the sit-in activists and simply visit affected residents in the mountaintop removal areas.

"Every time I'm at a particular place in Harlan County, Kentucky, in Appalachia, I go look at the junction of two creeks there," said Appalachian scholar Chad Berry from Berea, who participated in the sit-in. "One comes off a large mountain that is protected and is clear and looks to be drinkable. The other comes off a surface mining site and often looks like coffee with too much cream in it. Where they join is always interesting tangible proof of the toll surface mining is having on the Appalachian region's watersheds."

When the NRDC released a study last year that found that over 293 mountains and nearly 600,000 acres of hardwood forests had been destroyed by mountaintop removal, with reclamation efforts resulting in less than 4 percent of any follow-up economic productivity, fellow sit-in protest Mickey McCoy, from Inez, Kentucky, noted: "This research shows what a sacrificial lamb Kentucky has been for an industry that is not interested in any kind of restoration. Here in Martin County, more than 25 percent of the land has been leveled by coal companies yet we are among the poorest of counties not just in Kentucky, but the entire country."

Not to be outdone, the Virginia state legislature sought to eliminate citizen participation altogether.

In an unflinchingly quick move, the state legislature in Richmond passed a bill that would eliminate citizens' participation and basic regulatory oversight of clean water laws for strip-mining by shifting control of water quality to a political appointee. In effect, coal lobbyists managed to jam through a bill that placed a stranglehold on state officials by restricting the state's ability to adequately review stream monitoring or toxicity testing in permitting and enforcement actions. "If the coal industry doesn't want state officials testing the water, what are they afraid the tests will reveal?" asked Tom Cormons, Virginia director for Appalachian Voices. "The industry is trying to tie state officials' hands to prevent them from doing their job."

Accusing the EPA of "soft tyranny," a West Virginia state delegate introduced "The Intrastate Coal and Use Act" to strip the EPA of its regulatory overview for Clean Water Act permits in West Virginia. In a stunning move last week, a state committee gutted a long-awaited bill to regulate coal slurry injections despite overwhelming evidence that such operations have resulted in widespread health damages and huge cancer rates.

But West Virginia's state antics over the EPA paled in comparison to the U.S. Congress last week.

In an 11th-hour debate on the floor of Congress, Rep. Morgan Griffith, R-VA, whose Congressional district includes the Abingdon, Virginia-headquarters of Alpha Natural Resources, which recently purchased Massey Energy company to become one of the largest coal companies in the world, chastised the EPA for unfair rules and compared toxic coal waste to Perrier water. In one of the most ludicrous statements in the history of debates on the floor of Congress, Griffith reached deep into the Big Coal depths and responded to one of his colleague's calm review of mountaintop removal mining destruction with his final delusion: "Our data shows there is greater biodiversity after mountaintop mining than before."

Despite the fact that the highly mechanized mountaintop removal mining has led to record losses of underground mining employment -- nearly 65 percent in the last 20 years -- and has left the mining districts at the bottom of virtually all poverty and health care rankings in the nation, Griffith defiantly railed on the House floor over the EPA's war to create poverty.

In the end, Griffith and his House Republican majority won their battle -- though, hardly "the war" in the coalfields. The House passed amendments that would defund the EPA's authority to implement its recent guidance regarding mountaintop removal or invoke its authority under section 404c to veto Clean Water Act permits. Another amendment would defund the Department of Interior's role over the "Stream Protection Rule," which limits the dumping of coal waste near waterways. While the White House has already floated a possible veto balloon, and with the Senate Democrats vowing to scuttle the plethora of House amendments in their budget bill, the future of EPA enforcement of mountaintop removal operations still remains entangled in an endless parade of legal and state legislative challenges.

And mountaintop removal mining blasts on.

Standing at the east entrance of the Kentucky capitol earlier this month, Wendell Berry emerged from his sit-in and reminded me of his four-decades-long struggle to halt reckless strip-mining and mountaintop removal:

You can go to a little stream that's coming down off the mountain, and you know that one day that stream ran clear and you could have knelt down and drunk from it without any hesitation -- it would have been clean. And now it's running orange or black. And what people have to understand is that there's heartbreak in that. Harry Caudill said "tears beyond understanding" have been shed over this by people who love their land and have had to sit there and see it destroyed. I live right on the Kentucky River, and that river's running from those headwater streams. My part of the river is under the influence of this destruction that's going on up above.

Added Truman Hurt, a retired coal miner in Perry County and member of activist group Kentuckians for the Commonwealth, in a letter to his Kentucky state legislators:

The people and communities of Eastern Kentucky have suffered unnecessarily for years because the state environmental and mine safety agencies have failed to fully and fairly enforce the law. Now that the EPA is finally stepping up to enforce the law and protect our precious water, you and the governor are making every effort to block that enforcement. You seem willing to sacrifice the health and safety of your own constituents and the future of Eastern Kentucky in order to protect the rights of the coal companies to flatten the mountains and fill the valleys with their mine waste.

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