But valley fills are worrisome to some residents. Above Maria Gunnoe’s home are two sediment ponds, standard wastewater sites used in mountaintop mining. The ponds are formed when a dam cuts off a stream and collects the water before sending it downstream. Waste sinks to the bottom before the water is flushed out—in Gunnoe’s case, she says, down the creek in front of her house. A heavy rain may fill a sediment pond higher than capacity and cause it to overflow.
When she was a kid, Gunnoe would drink straight from the creek in front of her house. Today she says she sometimes sees murky black water flow by.
The EPA says in its environmental assessment of mountaintop mining that “mining-related flooding issues were generally found to be the result of problems associated with implementation and maintenance of the approved mining plan and not the mine plan itself.” In other words, valley fills work as long as they’re done correctly.
Who makes sure valley fills are done in accordance with surface-mining laws? West Virginia’s Department of Environmental Protection—which admitted in January that a computer glitch had prevented the department from receiving coal companies’ discharge monitoring reports for five years. In that period, Massey Energy had violated the Clean Water Act 4,100 times. The company had been discharging elements into rivers and streams at levels that violated the act.
“The state just stopped enforcing the Clean Water Act for five years,” says Hecker.
The EPA stepped in, fining Massey $20 million in January, the largest civil penalty for wastewater-discharge permit violations in the EPA’s history. Massey also promised to spend $10 million to enact safety measures so such violations wouldn’t happen again.
As of mid-July, Massey stock was trading at more than $82 a share—up from nearly $36 a share at the end of 2007. The company produced more than $2.4 billion in total revenue last year.
Hecker and Lovett decided early on that the only way to stop mountaintop mining was to stop valley fills. In March 2007, working with attorneys at DC’s Earthjustice law firm, they won a victory. US District judge Robert Chambers ruled that the Army Corps of Engineers’ method for issuing permits for valley fills violated the Clean Water Act. The corps had argued that if you erased a mile of a stream, you could resurrect it elsewhere. Chambers ruled there was little evidence to support that theory. In October, the case was appealed to the Fourth Circuit in Richmond. An expected May argument was postponed until September.
If Chambers’s ruling is upheld, the Army Corps of Engineers would have to apply stricter standards to protect the environment from stream filling, which could mean fewer valley fills.
Maria Gunnoe, who is involved in the suit, won’t be able to erase the fill in her hollow, but she can rest knowing that no more mountains will be destroyed.
“An elder in my community was a veteran of World War II,” she says. “He tells the story of the pilot that dropped the bomb from the Enola Gay. He says the pilot looked back and said: ‘Oh, my God—look at what we’ve done.’ Well, when the politicians look back on what they’ve allowed to happen to the state of West Virginia, they’re going to look at this place and say, ‘Oh, my God—look at what we’ve done.’ ”
Taking the Fight to Washington
Chuck Nelson is walking near the US Capitol on a rainy day in April, wearing his West Virginia baseball cap. He’s in DC for Mountaintop Removal Week, when about 100 people from around the country gather to lobby on the Hill. They wear pins with slogans such as stop slurry injection and carry photos of the destruction in Appalachia.
“The decisions that control our life are made right here,” Nelson says. “It makes me a little angry. They have the ability to change things, and they’re not.”
He’s hoping to help find more cosponsors for the Clean Water Protection Act, which was introduced in the House of Representatives last May. The bill would amend the Clean Water Act, clarifying that fill material cannot include waste. Coal companies would no longer be allowed legally to pollute waterways. The bill has 146 cosponsors so far but not one from West Virginia.
Nelson, his wife, and a few others have come from a meeting in Senator Robert Byrd’s office, where a framed photo on the wall describes a young Byrd as a “child of the Appalachian coalfields.” Any meeting in Byrd’s office is big: While the senator can’t cosponsor the House bill, he has the power to gather support for it or initiate a companion bill. He’s one of the people residents such as Maria Lambert are always trying to reach.
The senator wasn’t available today, but Nelson spent more than an hour with his legislative director, who allowed only West Virginia residents in the room.
“We get the same answers every time: ‘We’ll talk to Senator Byrd and see if he can do anything about it,’ ” says Nelson. “They know what’s happening. It’s just that they’re buddying up with the coal industry to let them mine the cheapest way.”
Nelson says he told Byrd’s aide that residents in the Prenter area had well water that looked like coffee—he didn’t bring a sample because he didn’t think it would get through security—and that people were dying.