"Now there is an increasingly powerful and vocal national movement to stop mountaintop removal," said Matt Wasson, an ecologist and director of programs for Appalachian Voices. "I'm saying we're going to have it stopped by the end of next year ... the end of 2009."
"Mountaintop removal" is, to some, a controversial term. It refers to the blasting away of mountain ridges to get to the coal underneath, a process that evolved with technological advancements over the decades from traditional contour mining.
What makes this type of mining cost-effective is a valley-fill permit, which allows the overburden - dirt and rock removed to expose the coal - to be dumped into adjacent valleys.
The practice has been criticized as degrading to the environment and hazardous to nearby residents, who must endure the noise, dust and danger of blasting on the mountains above their homes, as well as flooding when stream courses are changed.
"Mountaintop removal mining is a national disgrace," said Aaron Isherwood, staff attorney for the Sierra Club. "If the American people knew what was happening in Appalachia, I feel certain that they would demand an end to this practice."
Coal producers argue that their industry is one of the nation's most regulated - and as long as they follow regulations, they should be allowed to extract the fuel that fires half of the nation's electricity generation.
Wasson pins his hopes on two distinct possibilities - a pending U.S. 4th Circuit Court of Appeals ruling on a West Virginia court case and the election of a new U.S. president who will take office in January.
Other activists agree that both have the potential to put a stop to the issuance of new permits for mountaintop removal mining.
"I think if we get a new president, It'll be stopped, and I guess we're going to get a new president by next year," said Joe Lovett, director of the Appalachian Center for the Economy and the Environment.
With a long list of plaintiffs and defendants, the West Virginia lawsuit seeks to put a stop to valley-fill permits, which are issued by the U.S. Army Corps of Engineers.
Central to the issue is the question of whether the discard from mining should be considered waste under the 1977 Clean Water Act, which limits the release of pollutants into streams.
"I don't know what will happen in the future," Lovett said. "I can tell you we haven't had any significant permits issued since March 2007 because the court found that the federal government was illegally issuing permits at that time."
When a federal court in West Virginia issued an order rescinding permits in question, the permits were sent back to the Corps. The Corps of Engineers contested the ruling in the Richmond appellate court. The case also includes an issue related to sediment discharge.
Lovett said three different decisions on valley fills have been overturned by the 4th Circuit since 2000, "but we're much more optimistic this time."
He said if the appeals court upholds the decision, the federal government, which he said loosened its regulations during the current administration, would have to completely change its permitting processes.
"How can they approve the filling of hundreds and a couple thousand miles of mountain streams in this region and say that's not significantly degrading the water?" Lovett said. "All I can say is the Corps hasn't been doing its job up until now."
He said in addition to the West Virginia case, which will also affect Virginia, legal action also is under way in Kentucky, and the proposed Ison Rock Ridge mining permit in Wise County, Va., is being watched closely as it moves through the regulatory process, as is the court ruling expected soon in a lawsuit over logging on the site.
Andrew Ames, spokesman for the U.S. Department of Justice's Environment and Natural Resources Division, said the four permits remanded back to the Corps were not stopped; they were just sent back for review.
"I wouldn't be able to comment on what we think the 4th Circuit's going to rule, but that appeal and those four individual permits do not affect the Army Corps' ability to issue further individual permits, and they have been doing that," Ames said. "The plaintiffs again have filed suit over those, and that is still in litigation."
Surface mining's future
Mark Taylor, chief of the energy resource section in the regulatory branch for the Corps, said several valley-fill projects have been authorized by his Huntington, W.Va., district since the West Virginia ruling.
"Have we issued any coal mining permits since the ruling? Yes, we have. Do we feel it complies with the judge's ruling? Yes, we do," Taylor said. "In the regulatory department, we follow the rules and regulations as passed on to us by Congress and ... the judges. ... Whatever they decide is what we will do. We are neither for projects nor against projects."
David Spears, policy manager for the Virginia Department of Mines, Minerals and Energy, said even a ruling from the 4th Circuit favorable to the plaintiffs would not stop all surface mining here.
"They would still be able to do traditional surface mining, which is what we call contour surface mining, where they mine around the mountains and reclaim the land when they're done," Spears said. "They put the material back up into the mined area."
Barbara Altizer, executive director of the Eastern Coal Council, said if surface mining were stopped, the effect would be catastrophic for the region.
"It would be devastating, and not just to Southwest Virginia counties. It would impact Washington County, it would impact the Tri-Cities area. The coal dollar flows in lots of directions," she said. "There's so many things that coal is used for."
She said coal has helped the entire nation to grow and prosper, and, along with providing relatively inexpensive energy, it could be the key to future energy independence with the help of technology.
She said the extraction of coal by surface mining also has tangible local benefits.
"When you live in a mountainous region, sometimes you appreciate the flat land," she said. "We've got airports. We've got housing developments. We've got shopping centers [because of land flattened by mining]."
Jim Norvelle, spokesman for Dominion Virginia Power, which is building a new coal-fired power plant in Wise County, said he would not speculate on the future of valley-fill permits. But, he said, the plant will be able to use a wide variety of fuels.
"One of the reasons we pushed so hard for circulating fluidized bed clean-coal technology for this power station is its ability to burn a wide variety of fuels," Norvelle said. "We will be able to design our fuel plan around a wide range of coal, waste coal and biomass, and can make adjustments as the market for those fuels changes."
Activists say that while opposition to mountaintop removal is reaching critical mass, it will ultimately take action by a new administration in Washington to clarify Clean Water Act regulations to define mine spoil as waste or prohibit mountaintop removal outright.
"The next administration could clarify the federal regulations and make it clear that mountaintop removal mining was never foreseen when the surface mining
laws were passed and is not permitted under those laws," Lovett said.
"We can fight with agencies all we want, but it's going to take some will in Washington to get things done."
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