This was a wonky writing sample I did after my fourth interview with Inside EPA, a subscription investigative newsletter put out by the Inside Washington Publishers group. In the end, I was disappointed when the publishers decided they wanted someone with more newsroom experience, but I am still proud of the writing I submitted.
States Critical of GAO Report on Mountaintop Mining Financial Assurances and Oversight
The negative response of three out of four states to a recently released Government Accountability Office report, which raised questions about the adequacy of their long-term environmental monitoring and financial assurances for former mine sites, indicates any mountaintop mining regulatory changes will have to occur at the federal level.
The report, titled Surface Coal Mining: Financial Assurances for, and Long-Term Oversight of, Mines with Valley Fills in Four Appalachian States, focused on mountaintop mining in Kentucky, Tennessee, Virginia, and West Virginia. Between October 1, 2001 and June 30, 2005, those four states accounted for more than 98 percent of US valley fills—a mountaintop mining remediation practice where excavated earth and rock is disposed of by filling in adjacent valleys or hollows. The GAO noted studies of long-term conditions near reclaimed mine sites with valley fills “have shown environmental impacts.” Although it makes no explicit recommendations, the report implies that states’ duration of environmental monitoring and provision of financial assurances may be inadequate.
Kentucky, Virginia, and West Virginia all strongly criticized a draft of the report circulated by GAO. Unlike Tennessee, those three states have programs approved by the Department of the Interior (DOI) that allow them to regulate their mountaintop removal sites via the Surface Mining Control and Reclamation Act (SMCRA). Tennessee is the only state where mines are directly regulated by DOI. The department described the report as “an informative and fair characterization of the federal and state program requirements” of SMCRA.
The state regulators disagree. While Kentucky’s commissioner of the Department of Natural Resources said the GAO had misrepresented and sensationalized the issues, officials in Virginia and West Virginia criticized what they saw as calls for more long-term monitoring. The director of the Virginia Department of Mines, Minerals, and Energy said the report was based on an assumption that there are pollution discharges from valley fills after mining companies have been relieved of financial liability for site cleanup. Similarly, the Deputy Director for the West Virginia Department of Environmental Protection wrote the report implied monitoring periods should be longer before financial assurances expire, a move it opposes. “To require a never ending jurisdiction of formerly mined sites would be contradictory to the basic premise of ending jurisdiction under SMCRA,” he concluded.
In spite of the states’ objections, all of which are disputed by the GAO, the report has raised concern in Washington. Sen. Jeff Bingaman (D-NM), the chair of the Energy & Natural Resources Committee who commissioned the study, said in a press release after its publication that the Obama administration needs “to take a close look at the quality of long term monitoring and financial assurances we require from the industry to ensure that any problems are promptly remediated.” The responses from Appalachian officials make it clear that Bingaman and the administration will have to rely on regulatory mechanisms outside the SMCRA. Any attempt by DOI to require increased monitoring of remediated mining sites or to extend the duration of mining companies’ financial assurances would be met with stiff resistance by state regulators.
One federal remedy already exists. The report notes that the Clean Water Act (CWA) empowers the Army Corps of Engineers to request additional funds be set aside for mitigation, but in the four states surveyed, they have not used the it to increase the liability for mining companies. The EPA, however, has cited section 404 of the CWA, which regulates hazardous discharges, in its proposed veto of the Corps’ Spruce No. 1 valley fill permit.
Two other regulatory options could increase the safety and accountability of mountaintop mining, according to the GAO’s analysis. Under section 7003 of the Resource Conservation and Recovery Act, the EPA could classify coal ash as hazardous waste. The combustion residue is sometimes placed on the surface of mines to reduce acidic runoff. The GAO notes that if coal ash were reclassified, the EPA would be compelled to monitor surface mines for hazardous waste releases. The report also suggests the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund, would allow the EPA to address contamination from mountaintop coal mining—an application of the law which is strongly opposed by the mining industry.
Photo credit: The Sierra Club (via Flickr)