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Source:  Valley Fill Photo by Vivian Stockman

Bush cheats to win policy debates because his positions are contrary to public interest, facts and laws. It's tacky to cheat when playing cards.  It's downright inhumane to fix rules so that corporate buddies reap profits at the expense of human safety and environmental protection of a mountain range that has lived peacefully for millions of years.

When mining companies cried that Mountaintop Removal (MTR) was not economically feasible without the use of valley fills, Bush restructured the Clean Water Act (CWA) to legalize valley fills. (see Bush's Appalachian War: "Immunity" For Mining Companies)

However, implementing this little fix required some more fixes. Bush needed to wipe out another federal law that banned valley fills and intervene in the environmental analysis of MTR as well as the permitting process.

1.  The Stream Buffer Fix

One purpose of SMCRA  (Surface Coal Mining and Reclamation Act) is to establish "a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations."  [30 U.S.C. § 1202(a)]  To this end, President Reagan adopted a stream buffer rule (pdf file) which provided that "no land within 100 feet" of a stream "shall be disturbed by surface mining activities" unless specifically authorized by the regulatory authority.  The Office of Surface Mining (OSM) promulgated the rule to ensure that mining operations did not "seriously alter the normal flow of water" as well as to protect the riparian "biologic community."   [Bragg v. Robertson 72 F.Supp.2d 642 (1999)]

The structure of Reagan's rule was a mandatory prohibition against mining activities within the buffer zone.  The only lawful way a mining company could use valley fills was to obtain a variance from the ban. The only lawful way to obtain a variance was if the regulatory agency issued findings that the valley fill "will not cause or contribute" to the violation of water quality standards and will not adversely affect the quantity of water, water quality or other environmental resources of the stream, such as aquatic or habitat life.  [30 C.F.R. § 816.57 (former version)]

A regulator could not in good faith issue these findings because valley fills kill the streams, aquatic life and habitat:  

If there is any life form that cannot acclimate to life deep in a rubble pile, it is eliminated. No effect on related environmental values is more adverse than obliteration. Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream, there is no water quality.  [Bragg v. Robertson 72 F.Supp.2d 642 (1999)]

If the regulators had complied with the law, there would be no valley fills.  So, the fix for the past 20 years was that regulators ignored the buffer zone law. In 1999, a district court issued a permanent injunction to stop the use of valley fills. [Bragg v. Robertson 72 F.Supp.2d 642 (1999)]   The regulators admitted to authorizing valley fills by granting variances without making any of the required findings.  Moreover, the mining companies admitted in the permit application that adverse impacts would occur to the normal flow and gradient of stream, fish migration and environmental "values."  After admitting facts that precluded any variance findings, the mining companies obtained a variance on the grounds that the valley fills "make disturbance in these areas necessary." [Bragg v. Robertson 72 F.Supp.2d 642 (1999)]  In short, the mining companies obtained a variance based on an admission of facts that were grounds to reject a variance by creating the de facto exemption of business necessity.

This injunction freaked out mining companies, which argued that compliance with the law would eliminate valley fills and end all types of mining.  [Bragg v. Robertson 72 F.Supp.2d 642 (1999)]  The conservative 4th Circuit Court of Appeals vacated the lower court but not on the merits.  Once again, Bush did not have a scintilla of a chance to ultimately prevail in the courts, and so he drafted a new rule that voided stream buffers in order to legalize valley fills and squash lawsuits.

Once again, Bush argued that a conflict necessitated a rule change to provide "clarification."  SMCRA has a savings clause which provides that SMCRA shall not be "construed as superseding, amending, modifying, or repealing" the CWA.  Thus, SMCRA's rules must be consistent with the CWA.   Prior to Bush's new fill material rules, there was no conflict between the CWA and the SMCRA's buffer zone rule because the Corps did not have authority to permit valley fills with the primary purpose of waste disposal under 404.  After Bush issued his new fill material rule which legalized valley fills under the CWA, he then created a conflict with the buffer zone rule which prohibited valley fills. Thus, time for Bush to issue a new rule to "clarify" the conflict he manufactured.

Bush's rule provides that mining companies may not disturb land within the stream buffer zone unless they have permission or are covered by an exception.  Guess what? Mining companies are exempted from the buffer rule as long as they try really hard "using the best technology currently available to prevent, to the extent possible" adverse impacts when they construct sedimentation pond embankments or valley fills.  [30 CFR Part 816.57 (2007)]  The upshot is that now there is no buffer zone for streams and wildlife anymore than Bush's "Clear Skies" reduces air pollution or his  "Healthy Forests" protects the trees from clear-cutting.

2.  The EIS Fix

Each step of the MTR process harms people and our environment: (see, Bush's Appalachian War: Bombing Ancient Mountains)

  1.  Step one is clear-cutting native hardwood forests that are one of our top biodiversity hotspots, killing not just trees and species, but also a mini rain forest that functions as the "carbon sinks and lungs of the East Coast."




Source:  Photo by Vivian Stockman

  1. Step two is decapitating 800-1,000 feet of mountaintop with explosives that crack foundations of homes, water wells and land; create pollution clouds of rock and coal dust, and cause flying rocks and boulders to rain off the mountain.

  1.  Step three is the use of gigantic, 20-story high earth-moving machines to scoop out tons of mining overburden (rock, soil, and debris) waste which now includes the toxic components of the chemicals used for blasting.
  1.  Step four is filling valleys with tons of mining overburden that kills by suffocating the streams, aquatic life, wildlife and habitat; alters flow patterns that increase the number and severity of floods, and degrades water quality with mining overburden pollutants, silt and toxic chemicals.




Source:  Photo by Vivian Stockman of slurry lake

  1.  Step 5 is the use of coal slurry ponds, which are comprised of carcinogenic chemicals used to process coal as well as fine particles of coal that contain toxic heavy metals. The toxic slurry impoundments are constructed with unreinforced earthern dams that have been breached several times, killing and injuring people; damaging cars, homes and property, and creating "aquatic dead zones" as species are smothered by 7-10 feet of thick sludge.




Source:  Photo by Vivian Stockman of Moonscaped Mountaintop Golfing

  1.  Step 6 is reclamation that EPA says "may not occur for hundreds of years."  The truth is that reclamation will never happen due to another little fix.  Federal law requires excess spoil to be placed back into mined areas so that the lands are returned to their "approximate original contour."  It is physically difficult if not impossible to do this after the mountaintop is bombed to smithereens and any effort would be very expensive.  Rather than require MTR operations to conform to the law of contoured restoration, the feds gave a blanket exemption that mining companies must put the denuded, moonscaped plateau to "some beneficial public use," such as golf courses.

Bush knows the environmental impacts are significant because it is documented by government studies.  Thus, Bush needed to intervene in the analysis of environmental impacts so that valley fills would continue as part of Decider's view of greening America.

The NEPA (National Environmental Policy Act) requires agencies to determine if a proposed project, such as valley fills, has even the potential for a significant environmental impact. If so, then an Environmental Impact Statement (EIS) must be prepared to analyze the significant environmental impacts as well as mitigation measures and alternatives to the proposed project.  The problem for mining companies is that the EIS process involves gathering and analyzing technical data, such as water quality and biological data:

The EIS is crucially important because it can result in major changes in the regulatory regime for coal mining, such as higher costs, fewer permits and the potential to preclude development of coal reserves.




Source:  Photo by Vivian Stockman

Once again, the law was apparently ignored until a settlement reached in the Bragg case forced our government to prepare an EIS to analyze the effects of MTR.   Bush team needed a few more fixes to ensure that the EIS would sanction MTR and valley fills.

In October 2001, Bush team intervened to change the focus of the EIS that was commenced during the Clinton administration.  The stated purpose of the EIS was to recommend policies and procedures to minimize the adverse environmental effects to waters, fish and wildlife resources from MTR operations and valley fills. However, Bush's minion Griles (who was subsequently sentenced to prison for lying to Senate committee about his ties to Jack Abramoff) "instructed agency scientists and staff to change the focus" of the EIS to "centralizing and streamlining coal-mining permitting."

Another fix involved the need to ignore scientific studies. Internal government documents revealed that senior Bush officials "intentionally disregarded extensive scientific studies conducted by five separate federal and state agencies over four years" in order to prepare the EIS.  The EIS included more than 30 scientific and technological studies, many which documented significant environmental harm from MTR.  This had to be fixed because a finding of "significant" environmental impact may trigger the need for mitigation measures to reduce or eliminate the significant effects.  And, mitigation measures may require compliance with performance standards, such as water quality standards, that could not be met. So, the Bush gang doctored the EIS which had "5,000 pages of analysis documenting" environmental destruction:  They "ordered technical language rating the environmental impacts" as "significant" or "severe" be "stripped away in the editing process" and "initially removed an economic analysis" which showed that limiting the size of valley fills would not have negative economic impacts on electric costs.

Under Griles' direction, agencies were also "directed to drop consideration of any options for more environmentally benign alternatives to current practices despite overwhelming scientific evidence of environmental destruction from the technique."  A primary purpose of NEPA is that the data should provide a way for mining companies to develop alternatives to mitigate the significant environmental impacts of MTR.  However, federal agencies complied with Griles' instructions, and concluded that the studies were useful but did not provide sufficient information to develop alternatives that would mitigate MTR.

Bush team prevailed. When the EIS study was released, "all proposals for limiting valley fills had indeed been omitted. And, as Griles had urged, the document's main recommendations called for cutting bureaucratic red tape and speeding up the permitting process. One government scientist complained in an e-mail to colleagues: 'All we have proposed is alternative locations to house the rubber stamp that issues the permits.'"

3.  The NWP Fix

The Corps provided the house for that rubber stamp permit.

Under the 404 program, the Corps may issue an Individual Permit or a Nationwide Permit (NWP) for dredged and fill activities in US waters.  The mining companies wanted the streamlined process offered by the NWP.

The Corps issues Individual Permits on a case-by-case basis for discharges at "specified disposal sites."  If a proposed project may have a significant environmental impact, then an Individual Permit is required, and it may require preparation of an EIS.  Individual Permits are issued after notice and an opportunity for public hearings so that all interested parties may evaluate and comment on the environmental impacts of the proposed activity.  [Ohio Valley Environmental Coalition v. Bulen (2004) (district court)]  

The purpose of an NWP is to regulate with "little, if any, delay or paperwork" categories of activities on a nationwide basis in a streamlined regulatory process. The Corps is supposed to determine before issuing a particular NWP that a category of activities are similar in nature and will cause only minimal adverse environmental effects on both an individual and cumulative basis. [33 U.S.C. § 1344(e)(1)]  A proposed NWP will be issued only after the Corps provides the public an opportunity for comments and a hearing. The Corps issues NWPs in the federal regulations by subject of activity, such as Fish & Wildlife Harvesting, Oil & Gas Structures, Bank Stabilization, etc.  NWP 21 is for Surface Mining Activities and has been used by mining companies for valley fills and surface impoundments. [Ohio Valley Environmental Coalition v. Bulen (2004) (district court)]

So, how does a valley fill with its widespread, devastating environmental impacts qualify for an NWP that should be limited to activities having minimal impacts? To say that mining companies received special treatment with another fix is an understatement. What the Corps did is create an NWP process that was essentially a hybrid Individual/NWP that afforded mining companies the benefits of NWP without the hassles of an Individual Permit.  

Once the Corps approves an activity for an NWP, project proponents can conduct the activity without getting additional permission from the government. This is because the Corps provides opportunity for the public to comment about the proposed NWP and then determines that the activity will have minimal adverse environmental impacts before it issues the NWP. The Corps did not do this for NWP 21. Instead, after the NWP 21 was issued to the mining company, then the Corps conducted a case-by-case determination that each site authorization would have minimal impacts and did not provide any opportunity for public comment. The result is that this process may allow an activity with the potential for a significant environmental effect to be authorized without public notice or comment or a more in-depth environmental analysis.

In addition, NWP 21 does not provide any standards or requirements that mining companies must meet in order to qualify for the permit:

Because NWP 21 is defined by future Corps analysis and approval, rather than objective requirements or standards, any proposal to discharge coal mining waste might qualify for the permit, or it might not. NWP 21 imposes no limit on the number of linear feet of a stream, for example, that might be impacted by a valley fill or surface impoundment. It does not limit the total acreage of a watershed that might be impacted. The methods that project proponents can propose to "mitigate" the effects of their discharge are seemingly infinite. The "category" of activities authorized by NWP 21, in other words, is nothing more than the collection of activities that the Corps determines, during reviews that take place long after the issuance of NWP 21, will have minimal effects. The plain language of the Clean Water Act prohibits this procedure.

[Ohio Valley Environmental Coalition v. Bulen (2004) (district court)]

Ohio Valley Environmental Coalition v. Bulen (pdf file) (2004), enjoined the use of NWP 21 for valley fills and surface impoundments, but it was vacated by the Court of Appeal.  

I think this diary provides a few good reasons why we should call, email or write lawmakers to sponsor the Clean Water Protection Act.  As Devilstower says:

Momentum is on the side of the Clean Water Protection Act.  Wheels are turning, people are moving, and the odds that this bill will emerge from committee with the momentum it needs to sweep the full House is looking better every day.  And I don't think your participation in this has gone unnoticed.

Now is the time we need to apply even more pressure to win over the holdouts.  In particular, these Congressmen sit on the Water Resources Subcommittee.  None of them have said they won't support the CWPA, but they've also not signed on.  Adding just a few of these names to the list of cosponsors would be a huge boost.

NameDistrictLocal #D.C. #
Eddie Bernice JohnsonTX-30(214) 922-8885(202) 225-8885
Gene TaylorMS-4(228) 864-7670(202 225-5772
Brian BairdWA-3(360) 695-6292(202) 225-3536
Jerry CostelloIL-12(618) 233-8026(202) 225-5661
Russ CarnahanMO-3(314) 962-1523(202) 225-2671
John SalazarCO-3(970) 245-7107(202) 225-4761
Mazie HironoHI-2(808) 541-1986(202) 225-4906
Harry MitchellAZ-5(480) 946-2411(202) 225-2190
Steve KagenWI-8(920) 437-1954(202) 225-5665
Grace NapolitanoCA-38(562) 801-2134(202) 225-5256
Michael ArcuriNY-24(315) 252-2777(202) 225-3665

Why is Michael Arcuri's name lined out?  Because Arcuri signed onto the CWPA just yesterday.  Now, we just need to get the rest of them.  So call.  If you can't call, write.  

Originally posted to Patriot Daily News Clearinghouse on Tue Nov 13, 2007 at 06:40 PM PST.

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