Mountain Top Removal

Court to Obama: Show your cards on mountaintop removal

by Ken Ward Jr.

Obama administration officials better figure out pretty soon what their game plan is for dealing with mountaintop removal coal mining … because a federal appeals court today gave them a deadline.

By April 14, Obama’s lawyers from the Department of Justice must respond to a motion for a rehearing of the 4th U.S. Circuit Court of Appeals’ decision overturning a mountaintop removal ruling by U.S. District Judge Robert C. Chambers.

Questions about Obama’s position and his plans for regulating mountaintop removal have been growing since the 4th Circuit’s decision on Feb. 14 — and have reached new levels in the last week, after the U.S. EPA announced plans for much closer reviews of Clean Water Act permits for valley fills.

us_courthouse_4th_circuit.png

The Lewis F. Powell U.S. Courthouse, Richmond, Va.

Over the last eight years, the Richmond, Va.-based 4th Circuit — considered the most conservative appeals court in the country – has overturned four district court rulings from West Virginia that would have curbed mountaintop removal or at least required much more scrutiny of the process.

In fact, all five federal judges from West Virginia who have weighed in on mountaintop removal have all concluded the law requires much more rigid regulation of the practice. District Judges Charles H. Haden II, Joseph R. Goodwin, and Chambers have ruled that way at the trial court level. In Richmond, Judges M. Blane Michael and Robert B. King have done so.

(For those who don’t recall — most federal appeals court rulings are made by three-judge panels that are alleged selected randomly. After a panel decision, the losing party can ask for a rehearing “en banc.” The French term means “on the bench,” but in this case is refers to a rehearing by the full 4th Circuit, which is now 11 judges and 3 senior status judges).

Anyway, citizen groups lawyers filed a motion on Monday asking the full 4th Circuit to rehear an appeal of Judge Chambers’ March 2007 ruling. On Feb. 14, a three-judge panel overturned Chambers’ decision, which essentially required more scrutiny by the Corps of Engineers before it issued valley fill permits. That panel ruled on a 2-1 vote, with Judges Roger Gregory, a Clinton appointee, and Dennis Shedd, a George W. Bush appointee, voting in the majority, and Michael, another Clinton appointee, voting to uphold Chambers’ decision.

Under federal appeals court rules, neither the government nor the coal industry would typically be allowed to file a response to this motion for rehearing. The rule actually reads:

Unless the court requests, no answer to a petition for panel rehearing is permitted. But ordinarily rehearing will not be granted in the absence of such a request.

If the 4th Circuit were to grant a rehearing — and there is certainly no guarantee (far from it) that they will — the court then does one of three things: (a)make a final disposition of the case without reargument; (b) restore the case to the calendar for reargument or resubmission; or (c) issue any other appropriate order.

So far, though, all that has happened is that the 4th Circuit entered this order today, giving the other side (government and coal industry lawyers) until April 14 to respond to the rehearing petition.

For the record, environmental group lawyers sought rehearings in two of the three previous mountaintop removal cases. In neither case did the 4th Circuit ask the government and the industry to respond. Environmental groups lost both rehearing requests.

Stay tuned …

His Eyes Are on the Spadaro: Coalfields Need Jack Back at MSHA or OSM

Jeff Biggers

Author, The United States of Appalachia
Posted March 27, 2009 | 03:46 PM (EST)

His Eyes Are on the Spadaro: Coalfields Need Jack Back at MSHA or OSM

Jack Spadaro is a singular figure in the mining world. With nearly 40 years of experience as a mine safety engineer and expert, Spadaro is one of those very rare government regulators who is revered alike by miners and coalfield citizens for his meticulous commitment to safety, health and environmental standards in the coalfields.

On the heels of last December’s TVA coal ash pond disaster, and the EPA’s recent decision to review mountaintop removal policies more closely, which has set off a flurry of miscommunication in the mining industry, Spadaro’s legendary expertise and clarity could not be more needed in the transitioning corridors in Washington, DC.

Whether it is a high level appointment at MSHA or the Office of Surface Mining, the Obama administration could use someone with Spadaro’s integrity to rebuild the public trust in our regulatory agencies; that mining companies and the agencies responsible for enforcing mine health and safety and environmental laws must carry out their proscribed duties and be held accountable when they fail to do so.

“Jack Spadaro always put the safety of the communities first,” says Teri Blanton, with the Kentuckians for the Commonwealth. “He is one of my heroes. He carefully documented a disturbing history of violations leading up to, and following, the Martin County Coal sludge disaster. When the Bush administration pressured him to ignore the violations and sign a watered down report, he refused to back down, and it eventually cost him his job. I can’t imagine a greater sacrifice to make in the name of public service.”

During the draconian era of the Bush administration, Spadaro’s incorruptibility forced him out of his job at MSHA, where he served as the Superintendent at the National Mine Health and Safety Academy, and investigated the Martin County, Kentucky coal slurry breakage in the fall of 2000 under the Assistant Secretary of Labor. One of the worst environmental catastrophes in the US until the recent TVA coal ash pond disaster, the Martin County spill at the Massey Energy site dumped over 300 million tons of toxic sludge into 100 miles of streams, contaminating the water supplies for 27,000 people, and wiping out 1.6. million fish. When Spadaro blew the whistle on the subsequent downplayed investigation reports and watered-down enforcement actions by the incoming Bush administration appointees, he found himself locked out of his office. In the end, Massey was cited for two minor violations and fined $110,000.

As independent journalist Beth Wellington reported, House Committee on Education and the Workforce members, including Representatives George Miller, D-CA, Robert Andrews, D-NJ and Major Owens, D-NY, wrote to Secretary of Labor Elaine Chao about the machinations behind the 2002 attack on Spadaro’s crusade for safety and enforcement:

“Obviously Mr. Spadaro’s status as a whistleblower–questioning the conduct of the Martin County Coal investigation and the Department’s use of no-bid contracts with friends and associates of Department officials–raises a very serious concern about the nature of the current disciplinary investigation against him.”

Ken Ward at the Charleston Gazette, whose investigative pieces on the Martin County story brought the disaster to national attention, has chronicled Spadaro’s work closely for well over a decade. Ward did an extensive interview with Spadaro as part of a 25th anniversary look back at the Buffalo Creek disaster:

http://www.wvgazette.com/static/series/buffalocreek/SPADARO.html

Since 2004, Spadaro has served as an independent mine safety & health and environmental expert. In accepting the Jenco Foundation Award for his long-time commitment to the Appalachian region in 2004, Spadaro looked back at his career beginnings:

“My own job began in November 1968 at the Farmington Mine near Fairmont, West Virginia, where 78 miners died in a methane gas explosion. I had worked the summer before the explosion in that mine as an engineer trainee, so the deaths of those men was a devastating experience for me. In response to that disaster, Congress enacted the Coal Mine Health and Safety Act of 1969, which became the foundation for mine worker health and safety for the next 35 years. I did dedicate my life at that time to doing anything that I could in my career to improve working conditions and living conditions for miners and their families in the Appalachian coalfields.

“Later, in 1972, I went to Buffalo Creek in Logan County, West Virginia where a coal waste dam had failed around breakfast time on February 26. The dam failure sent 132 million gallons of black sludge down the narrow valley, killing 125 men, women and children and destroying homes in 17 communities. Some communities were literally swept away, never to be rebuilt. I spent the spring and summer of 1972 interviewing survivors and writing an engineering report regarding the cause of the dam failure. I’ll never forget the faces or the voices of those people and the suffering they endured.”

In 2006, Spadaro received the Hugh Hefner First Amendment Award for his significant contributions to the protection and enhancement of constitutional rights. Here’s a clip from that award:

As the Obama administration begins to make its high level appointments at MSHA and OSM, let’s hope Jack Spadaro will be there to usher in a new era in the coalfields.

Obama administration makes move against mountaintop removal
from the Charleston (W.V.) Gazette: The Obama administration has launched a crackdown on mountaintop removal by moving to delay or block mining permits damaging Appalachian communities and ecosystems.

The Gazette’s Ken Ward Jr. reports:

EPA officials quietly began the action Monday, with letters aimed at blocking or slowing down two mining permits the federal Army Corps of Engineers proposed to issue in West Virginia and Kentucky. Agency officials then made a formal announcement this afternoon.

EPA Administrator Lisa Jackson says her agency plans to review other mining permit requests as well. Yesterday Obama administration attorneys said the development of a new policy on mountaintop removal was in the work.

You can read the two letters sent by the EPA to the Army Corps of Engineers office in Huntington, W.V. here. Ward also posted the EPA’s press release at his excellent Coal Tattoo blog, where he recently covered Facing South’s report on a federal agency’s effort to scuttle research pointing to possible hazards of waste-coal-burning power plants.

Groups on both sides of the MTR issue are already responding, with the Sierra Club issuing a statement praising the EPA’s move and the National Mining Association charging that it puts jobs and coal production at risk.

By Sue Sturgis on March 24, 2009 4:24 PM