Environmental Degradation Going Unregulated:

Non-Point Source Pollution of Small Freshwater Streams Due to Mountain-

Top Removal Surface Mining in the Appalachian Highland States

Evan Miller

Environmental Law

11/22/2014

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Dear EPA Administrator Gina McCarthy and OSMRE DirectorJoseph Pizarchik,

Where there once was a mountain, now there is not. Unfortunately this has been the reality

over 500 times in the Appalachian states as the problem has now been escalating for over four

generations.1Mountaintop removal surface mining in Appalachia is one of the most environmentally

degrading acts that industry has done in the history of the United States, and not only is the

government showing little interest in this, but so are the people of the U.S. One of the largest

environmental impacts of this particularly gruesome type of surface mining is the non-point source

pollution that drips down into the freshwater streams that flow through the mountains. This runoff

contains heavy metals and toxic chemicals, and has not only caused numerous environmental

concerns for the streams, but is causing abundant health issues for the millions of people tied into

this watershed. Worse yet, this is all happening with little regulation in its way. Through 2014, over

2,000 miles of mountain streams have been changed for the worse and will not be back to the way

they once were ever again. That is 2,000 miles worth of drinking, swimming, or fishing water for

humans, or 2,000 miles of water needed for survival for hundreds if not thousands of species that

rely on these streams for life. Non-point source pollution of freshwater streams from mountaintop

removal mining is endangering a diverse ecosystem and millions of Americans, and yet it has gone

under regulated for generations because of the strong mining lobby. Throughout this letter, I will

evaluate the effects of non-point source pollution in these streams, the statutory and case law that is

relevant, what must be done to comply with those laws, what must change to slow or even stop this

degradation, and what positions or pushbacks to expect from relevant other parties.

Dating back ten plus years, the problems the Appalachia residents had with the mining

companies were not related to environmental issues, and certainly not a process as complex

scientifically and legally as non-point source pollution, but their problem was with labor issues.

1"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/.

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Picket lines were for higher wages or better benefits as they felt they were being exploited from the

mining companies. Some of these protests were successful, others were not, but today we are seeing

exploitation from the mining companies on a whole different scale: exploitation of the whole

ecosystem. Mountaintop removal mining, a form of surface mining, is defined as any type of

extraction of natural materials from a mountaintop or ridgeline through the complete removal of the

covering materials first.2Mountaintop removal mining can include cross-ridge mining, box-cut

method mining, steep slope mining, area mining or mountaintop mining, and none of these methods

have been found to be any less environmentally damaging than another.3Mountaintop removal coal

mining is broken down into six steps, including clearing the trees by burning them, blasting the

elevation on top of the minerals, digging out the minerals with a dragline as opposed to employees,

dumping the waste into a valley, processing the coal to remove other metals or minerals from it, and

meeting the reclamation requirements by spraying grass seed onto the mined land.4All of these

stages pose their own significant environmental concerns.

Non-point source pollution is defined by the Clean Water Act as any water pollution that is

not point source pollution. Therefore, non-point source pollution is any water pollution that is not

“any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch,

channel, tunnel, conduit… from which pollutants are or may be discharged.”5This type of pollution

is seen in all six stages of the mining process. For example, in the first stage of clearing, the soil is

often turned up causing topsoil and pollutants from machinery to drip down into the streams upon

the next rain. This stage is the least of our worries in mountaintop removal mining pollution though,

as the stages to be most concerned about are the dumping waste and processing steps. In the

2 "Mid-Atlantic Mountaintop Mining," EPA, June 24, 2013, Accessed October 18, 2014, http://www.epa.gov/region3/mtntop/. 3"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 4 "Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 5"Summary of the Clean Water Act," EPA, November 12, 2014, Accessed November 18, 2014, http://www2.epa.gov/laws-regulations/summary-clean-water-act.

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dumping waste stage, mining materials are considered “fill materials” under the Clean Water Act,

and they can be dumped directly into streams, making the stream disappear altogether. For streams

that are fortunate enough not to disappear, they are often polluted from sludge impoundments,

which are large pits sometimes even the size of a small lake that is pure toxic chemicals stored on the

top of the mountain in the mining site.6 These pits are not covered or contained; they are just filled

and left alone for rainwater to catch the sludge that makes its way out through small indents andinto

the streams. The processing stage also lets a number of pollutants loose. Essentially, heavy sprayers

wash off metals, coal dust, and dirt that is on the coal with a toxic spray, and while most of the

remains are caught to be dumped in the sludge impoundments, some drips away from the

processing plants into nearby mountain streams.7This process has become less environmentally

friendly over recent years, as mining companies are trying to cut corners to save money which often

times includes less safe processes that emit more toxic waste.

While it is clear that these processes are environmentally damaging, the question is still raised

about what the exact problem is as many are still wondering. The fact is that one of the two major

ecological hotspots in the United States is in Appalachia, meaning that there is more biodiversity per

square mile than most everywhere else in the United States.8 Mountaintop removal and pollution of

the streams has made it hard for these species to survive, and the EPA estimates that the eliminated

forests will take a couple of hundred years to return while the streams may take even

longer.9Unfortunately, that kind of time is not something we have right now, with confirmed

localized extinctions of the entire order of the mayfly and the native salamanders, both reliant on

these mountain streams. Other species such as the trout have also suffered, with decreasing

6"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 7"ILoveMountains.org -- End Mountaintop Removal Coal Mining."I Love Mountains. Accessed October 18, 2014. http://ilovemountains.org/. 8"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 9 "Mid-Atlantic Mountaintop Mining," EPA, June 24, 2013, Accessed October 18, 2014, http://www.epa.gov/region3/mtntop/.

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populations and birth defects including spinal issues and even two-head mutations.10The people of

the area are hurt as well, with the tourism industry suffering and health problems as a result of

polluted well-water from freshwater stream contamination seeping through the soil. Numerous

health studies done in recent years have confirmed direct ties between mountaintop mining runoff

and higher rates of cancer leading to shorter life spans.11 If people knew about these problems, there

would undeniably be more outrage.

The fact is that government regulation has failed to stop non-point source pollution from

mountaintop removal mining due to strong mining lobbying making it against the interests of

government officials. For the example that I mentioned with the first stage of deforestation earlier

and how non-point source pollution occurs from that, the Surface Mining Control and Reclamation

Act of 1977had a subsection written in to disallow for mining operations to take place within 100

feet any stream. Unfortunately, this enforcement was passed onto the states that did little to enforce

it, and the federal government did not reprimand them for thisinaction.12Apart from this subsection

of the Surface Mining Control and Reclamation Act, there is nothing in this act to prevent or punish

mining runoff, which shows in itself that the one act that targets the regulation of surface mining

operations has even failed to properly address or regulate this issue area.

Because the Surface Mining Control and Reclamation Act did not do it, regulation of

nonpoint source pollution from mountaintop removal mining is left to the Federal Water Pollution

Control Act, also known as the Clean Water Act. The powers of the Clean Water Act lie in the

Commerce Clause of the Constitution, which gives Congress the ability to regulate interstate

commerce. Congress often passes these powers down to agencies such as the EPA, who regulate

10"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 11 The Last Mountain Movie, United States: Solid Ground Films, 2011, DVD. 12"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/.

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activities such as coal mining that undeniably affect interstate commerce.13The Clean Water Act was

passed in 1972 with the goal of regulating water pollution. While it was written to regulate point

source and non-point source pollution, it has been considered a success with point source and a

failure with non-point source pollution, showing the difficulty of regulating non-point source

pollution.14 The regulatory target of the Clean Water Act is any entity that pollutes into a body of

water. This clearly raises more issues for regulating mining than the Surface Mining Act, as it only

regulates surface mining so could have taken a much more direct approach to regulation than the

broad and failed method of dealing with non-point source pollution seen in the Clean Water Act.

The reason for the failure of the Clean Water Act to regulate this pollution is not all the

result of the drafters of the Act however, as they could not have anticipated what would come next.

In 2002, the Bush Administration passed an executive order to amend the Clean Water Act to

include mining byproduct as a „fill‟ under the Clean Water Act, making it essentially legal for mining

waste to be dumped into streams whether it is directly or indirectly.1516Many that are knowledgeable

in this field have blamed the Republican Party for this, but the full story reviles that this initiative

was started in the later years of the Clinton Administration.17This regulation change allowed for

mining waste to be polluted legally, and is considered by some to be the worst executive order ever.

Still, that is not the only reason non-point source pollution regulation has failed. The punishments

for violations are often not severe enough to deter the crime. For example, Massey Energy

Company, recently bought out by Alpha Natural Resources Company has been called the most

environmentally harmful company to have ever existed. Before 2002, some of the mining operations

13"Summary of the Clean Water Act," EPA, November 12, 2014, Accessed November 18, 2014, http://www2.epa.gov/laws-regulations/summary-clean-water-act. 14"Summary of the Clean Water Act," EPA, November 12, 2014, Accessed November 18, 2014, http://www2.epa.gov/laws-regulations/summary-clean-water-act. 15 "Laws & Regulations," EPA, December 6, 2013, Accessed October 18, 2014, http://water.epa.gov/lawsregs/. 16"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 17 The Last Mountain Movie, United States: Solid Ground Films, 2011, DVD.

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Massey undertook were issued Total Maximum Daily Limits (TMDLs) for how much pollution they

could dump into a body of water every day. Throughout the course of about six years, Massey was

issued over 600 federal violations. While some were for issues like safety that led to the deaths of 29

coal miners in West Virginia in 2010, many were for TMDL violations and similar environmental

issues.1819The reason Massey kept having all these violations were because it was cheaper for them to

pay off the violations than to change their practices. Today, while lobbying has made it legal to

dump the waste, violations by these mining companies still occur and because it is cheaper to pay

the fine than to change the practice, violations continue to occur. This is a clear sign that the

regulations in place have failed, and a reevaluation of those regulations is required.

While the Clean Water Act is the main statute that regulated these waters, the newer Safe

Water Drinking Act of 1974 could also provide protection, but at this time does not for the

mountain streams. Because these streams are used for and affect drinking water supplies for the

local populations, they fall underneath the regulatory target of any source of water that supplies

drinking water to a significant number of people.20 While the Safe Water Drinking Act could provide

penalties to mining companies for violating the local‟s rights to their own drinking water through

pollution, I will not be evaluating this statute as the Clean Water Act more directly refers to

regulating levels of emitted pollutions, whereas the Safe Water Drinking Act does not.21

Case law also plays an important role in mountaintop removal mining operations. Three key

cases play the biggest role in regulating non-point source pollution from mountaintop removal

mining in Appalachia. The first two cases, Hodel v. Virginia Surface Mining and Reclamation Association

and Hodel v. Indiana are very similar in nature. Hodel v. Virginia, the first of the two cases from 1981

18"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 19 The Last Mountain Movie, United States: Solid Ground Films, 2011, DVD. 20 "Safe Drinking Water Act (SDWA)," EPA, July 30, 2014, Accessed October 18, 2014, http://water.epa.gov/lawsregs/rulesregs/sdwa/index.cfm. 21"Safe Drinking Water Act (SDWA)," EPA, July 30, 2014, Accessed October 18, 2014, http://water.epa.gov/lawsregs/rulesregs/sdwa/index.cfm.

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came in the wake of the passing of Surface Mining Control and Reclamation Act of 1977 to

challenge the new Act on the basis of the 5th and 10th Amendments protecting Due Process and Just

Compensation, respectively. The mining companies were afraid their rights to the land were

diminished because of the new Act, and the government failed to provide them due process or just

compensation as a result of this “taking.” The court disagreed, saying the Act was constitutional.22

The debate did not stop there though, as Hodel v. Indiana brought the same claims not even a year

later with the addition of an equal protection violation claim. The court deferred to the decision in

the previous case, and once again the coal companies lost.23 These cases are critical because while

they are challenges under the Surface Mining Act, they establish precedence for the courts to

support environmental protections from mining companies. These cases have been used as

precedent in civil cases such as the recent settlement of the EPA with Alpha Natural Resources for

environmental damage to mountain streams totaling nearly $40 million.24These cases were not as

clear cut as they may seem however, as both cases were fought all the way to the Supreme Court

level, with both cases seeing wins for the coal companies in the lower courts.25

While no major case law exists between surface mining and the Clean Water Act, there is

one case that is incredibly relevant when discussing non-point source pollution and the Clean Water

Act. There was a time when Concentrated Animal Feeding Operations (CAFOs) were considered

non-point source pollution, and were under-regulated as a result. After all, the pollutants travel to

bodies of water in the same manner as other non-point source pollutants, just in higher volume.

Waterkeeper Alliance v. EPA in 2005 changed that designation, now requiring CAFO‟s to get permits

for their pollution under the National Pollutant Discharge Elimination System (NPDES) giving

22 Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 101 S. Ct. 2352 (1981) 23 Hodel v. Indiana, 101 S. Ct. 2376 (1981) 24"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 25Durr, Susan, "ENVIRONMENTAL LAW: The Surface Mining and Reclamation Control Act ...," Akron Law Review, January 1, 1982, Accessed November 15, 2014, http://www.uakron.edu/dotAsset/9e14ba91-0c10-4f12-b8a5-049f63f1287c.pdf.

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them established TMDLs.26This is an outstanding victory for a future potential president, as it

effectively changed CAFOs from non-point to a point source pollutant emitting “actual

discharges.”27It is not unreasonable to think that this precedent should apply to mining, as the

situations are similar, with both emitting more than the average non-point source pollutant, and in a

manner that is particularly harmful. While nothing has come of this yet, it is my advisement to be

aware of this case law in the future creation of regulations for mining emissions.

After evaluating the practices that the EPA currently uses to regulate surface mining non-

point source pollution, I have found that you are in compliance with the statutory and case law that

exists. The citations that have been issued to coal companies for violations of water quality have

been violations above the allotted TMDLs or violations that severely impact water quality, and both

have been issued with evidence. Recently, settlements have been reached with the EPA by coal

companies as well for violations of water quality, including one with Alpha Natural Resources for

$28 million in punitive damages and $12 in cleanup costs. As these settlements were reached out of

court, not only are they cheaper for the EPA, the taxpayers, and the coal companies, but they also

relieve the burden of proof from the EPA. Because the EPA would be responsible for the

preponderance of the evidence in civil court, they complexities of non-point source pollution could

prevent a favorable judgment. It is not unusual to see companies pass the blame off between

themselves, to other industries, or to urban activity to ease their culpability in these situations, and

by reaching a settlement that possibility is eliminated.

That is why it is under my advisement that the EPA and US Justice Department continue to

reach out of court settlements to punish past violations of environmental laws that are in place.

However, the mindset does need to change from getting companies to comply with current

regulations to creating new regulations. Two pieces of legislation exist that could be of tremendous

26Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2d Cir. 2005). 27Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2d Cir. 2005).

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help in making this a reality, as settlements can only be a start. First, the Clean Water Protection Act

is a bill pending in the House of Representatives for a few years that would reverse the presidential

order from the Bush Administration that removed regulations on pollutants for surface mining

discussed earlier.28The bill also will make it much more difficult for any future president to create

orders that would revert this Act or any other part of an act that protects the environment.29 While

this bill has seen some support, it needs a much stronger push to get it through Congress before all

of the mountain streams are gone, and a public push from the EPA and OSMRE would help its

passing.

Additionally, in the OSMRE right now, the Stream Protection Rule is being drafted which

would help reinforce the buffer zone on mining activities near streams. In 2008, the Bush

Administration created a rule that eliminated buffer zones completely, as they had been ignored for

over two decades anyways, but then it became even easier for mining companies to legally pollute

these streams. Several environmental groups filed a suit against the administration, and won in early

2014 when the judge ruled the lifting of this regulation would endanger millions of lives due to water

pollution. To comply with the ruling, the OSMRE was ordered by the Obama Administration to

rewrite this rule, calling it the Stream Protection Rule.30 A strong Stream Protection Rule with strict

guidelines and punishments would allow for stronger environmental protections on these streams,

allowing for the mediation process to begin. However, a weak Stream Protection Rule such as the

Stream Buffer Zone Rule from 1983 would effectively send us back into the same cycle, where

mining companies would have free rein over pollution emissions as they effectively have had for

over a decade now.

28"Summary of the Clean Water Act," EPA, November 12, 2014, Accessed November 18, 2014, http://www2.epa.gov/laws-regulations/summary-clean-water-act. 29"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/. 30"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/.

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Two other options that have been thought of include NPDES permits as point-source

pollutants and offsetting programs. The NPDES permits would be similar to the idea mentioned

when I discussed Waterkeeper, with a changing of mountaintop removal mining from being a non-

point to a point source. If this happened, regulating the emissions would be substantially easier, but

testing would still be a significant problem. Similar to this, NPDES permits could only be imposed

during the cleaning and disposal stages, as they are the most harmful stages and also the most similar

to a point-source pollutant apart from the valley-fills made legal during the Bush Administration.

The second option is offsetting programs for mining companies. While this option is critiqued

because it still allows for pollutants to disrupt the hydrological cycle which will have an

environmental impact, it will reduce the long-term impact through remediation for that

pollution.31This idea is not perfect by any means, it is a viable option as it will be less opposed by

mining companies, and therefore is a viable short-term option to replace the current system.

Changes such as the ones listed above are bound to be met by some resistance, but will also

be met by some applause. The mining industry has a strong lobby against reform that would hurt

their business. They captured the local economy of Appalachia generations ago and have refused to

give it up. They do not control the national economy as some think though. After calculations done

by Appalachian Voices, coal from mountaintop removal mining only supplies 3% of the power for

the US, and that 3% can easily be replaced by solar or wind energy.32Because of the strong mining

lobby, Congress may also be opposed to change against the mining companies. Ever since

corporations have been considered „corporate citizens,‟ campaign contributions from mining not

just including monetary by also publicity have helped many candidates get into office. The threat

31Fowler, Lara, Matthew Royer, and Jamison Colburn, "Addressing Death by a Thousand Cuts: Legal and Policy Innovations to Address Nonpoint Source Runoff," Choices. January 1, 2013, Accessed October 25, 2014, http://www.choicesmagazine.org/choices-magazine/theme-articles/innovations-in-nonpoint-source-pollution-policy/addressing-death-by-a-thousand-cuts-legal-and-policy-innovations-to-address-nonpoint-source-runoff. 32"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/.

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mining lobbyist‟s pose also has threatened to get a number of officials out of office, and while some

members of Congress may be afraid of these lobbyists, strong public support for reform will be

enough for them to get over their fears as otherwise they will see the end of their employment in

Congress very soon anyways. For the court system, as is their nature they will remain neutral.

However, looking at previous case law, they will have an easier time upholding an act than a rule,

and because of that I would advise in that direction.

As the EPA or OSMRE, I would expect to see a positive reaction from many local

governments who have not been able to oppose these mining companies alone. Some local

governments have been „bought-out‟ more or less by the mining companies, and some opposition

will come from these governments, but overall a positive reaction should be expected. The local

citizens will also have a positive reaction after seeing their friends, family, and neighbors become ill

and even die from these mining companies. People in these small towns have lost their jobs to new

expensive machinery, and now cancer rates up to four times the national average have been

observed in these towns. To make matters worse, companies like the former Massey Energy have

ignored safety standards so much that 29 miners died in 2010 and the former CEO is now up on

criminal charges as a result, and in 2004 a three year old died in their sleep when a half-ton boulder

was pushed off a cliff and rolled into a house by the same company.33 Anything that prevents the

mining companies from doing worse damage will be applauded by the local residents who have had

enough. Non-profit environmental groups are also working to stop the damage coal companies are

doing in Appalachia. The Sierra Club started the Beyond Coal initiative, the Appalachian Voices

group works on grassroots programs to empower the local residents, and Robert Kennedy Jr. of the

NRDC has led protests against the mining companies. There is strong support by non-profits for

reform, and they will not be waiting much longer to get the reform before they start demanding it.

33"Appalachian Voices," Appalachian Voices, Accessed October 18, 2014, http://appvoices.org/.

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The problem behind non-point source pollution of mountain streams in coalfields is a very

complex issue with legal, social, and scientific consequences that reach far beyond many issues we

have seen before. In the beginning of my letter I stated that this pollution is endangering a diverse

ecosystem and millions of Americans and the problem was the failure to regulate mountaintop

removal coal mining, and after the evidence I presented I would argue that claim is evident. This is

not a problem that can be dealt with by the next generation, or the next term, or even next year; this

is a problem for today. Over 500 mountains and 2000 streams have already been permanently

impaired; can we afford any more?

Thank you for your time.

Sincerely,

Evan Miller

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