Invoking an earlier promise to “use the best science and follow the letter of the law,” Lisa Jackson’s EPA, with a little help from her friends at the Army Corps of Engineers and the Department of Interior, announced Friday that 79 pending mountaintop removal mining permits in the Appalachian coalfields were in violation of the Clean Water Act and required further review.

Next Tuesday, the Senate Energy and Natural Resources Committee will have a chance to determine if the letter of the law and the best science are also going to be part of the bedraggled Office of Surface Mining, when it reconsiders the directorship nomination of Joseph Pizarchik, and in effect, the continuance of the demoralized bureaucratic reign of assistant OSMRE director Glenda Owens.

Quick answer: Not likely.

For a growing movement of coalfield citizens from Pizarchik’s state of Pennsylvania, mining experts, tribal members, conservationists, and citizens and environmental organizations that represent millions of Americans across the nation, “Coal Ash Joe” Pizarchik’s and Owens’ bureaucratic backgrounds are indicators of their disregard for OSM’s mandate to “further the science of reclaiming mined lands and protecting the environment.”

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Pizarchik’s hearing on Tuesday will be a litmus test of the Obama administration’s–and the US Senate’s–commitment to appointing and confirming agency directors who believe in science and law in our nation’s coalfields, or a return to a “climate of lawlessness” that plagued the OSM agency for years.

Senate Alert: Pizarchik’s nomination needs to be withdrawn or held up by a law-and-science-seeking Senator. UPDATE: September 12: The national Citizens Coal Council today sent official notice to Secretary of the Interior Ken Salazar of the Council’s intent to file suit under the federal Surface Mining Control and Reclamation Act (SMCRA) against Interior’s Office of Surface Mining Reclamation and Enforcement (OSMRE) for failure to enforce SMCRA in its oversight of Pennsylvania’s federally-delegated responsibilities.

CCC’s legal notice cites Pennsylvania’s Department of Environmental Protection (PA DEP) for chronic and deliberate violations of SMCRA through PA DEP’s pattern and practice of disposing millions of tons of coal ash – also known as coal combustion waste, or CCW – into coal mines. Coal ash contains many hazardous chemicals and poisonous metals, such as arsenic and lead, in highly concentrated quantities.

“Despite longstanding citizens’ complaints and voiced concerns, PADEP has failed and continues to fail to implement, administer, enforce and maintain its approved state regulatory mining program in accordance with SMCRA and the federal regulations that implement that important landmark federal environmental law,” said Aimee Erickson, Coordinator of the Citizens Coal Council.

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CCC Board member, Michael Nixon, also points out: “This is just one of the many reasons that President Obama’s nomination of PA DEP’s Joe Pizarchik to be OSMRE Director is unacceptable to so many people, in Pennsylvania and nationwide. It’s not too late to find the right person for the job, because that person certainly isn’t Joe Pizarchick, the ringleader of DEP’s chronic servitude to industry’s coal ash disposal and mine dumping schemes.”

CCC’s Legal Notice of Intent to Sue OSMRE is here:Download file

While Pizarchik’s controversial and increasingly obsessive support for coal ash dumping–despite scientific evidence to the contrary–has been widely denounced and was discussed in his first hearing in August, critics also point to Pizarchik’s support of longwall mining that has devastated his fellow farmers and region in southwestern Pennsylvania, and his work as a legal counsel at Pennsylvania’s mining department on a loophole that ultimately led to burying miles of his state’s streams with coal waste.

Here’s a video montage on why Pizarchik is the wrong choice:

Owens’ extraordinary indifference to the impact of mountaintop removal mining–and OSM’s inability to enforce reclamation laws–has become legendary. Coal Tattoo journalist Ken Ward explored Owens’ background and her Bush administration-era machinations in an earlier story.

Pizarchik’s own indifference to OSM’s historical role in mountaintop removal–and OSM’s reclamation duties and enforcement–is not only startling, but unnacceptable. According to the Center for Biological Diversity, “In 2001, Mr. Pizarchik supervised the drafting of regulations that weakened stream buffer-zone rules to allow the filling of stream valleys in Pennsylvania.”

“Given the environmental crisis our country faces, we can’t afford to have someone in this position with a record of consistently downplaying the devastating effects of coal mining and coal ash on the environment,” said Tierra Curry, biologist at the Center for Biological Diversity.

At his hearing in August, Pizarchik dodged three questions about mountaintop removal, and then begged off that he needed to learn more about the details–about one of the OSM’s most controversial nightmares.

Too bad Pizarchik hadn’t read Appalachian Center for the Economy and the Environment attorney Joe Lovett’s testimony from the House Committee hearings in 2007 on the 30th anniversary of the Surface Mining Control and Reclamation Act. Lovett detailed the “incalculable harm that OSM’s failure to enforce the Act has done to our region.” He added:

“Mountaintop removal mining carelessly lays waste to our mountain environment and communities. The deforestation is not only an ecological loss, but a permanent blow to a
sustainable forest economy in a region in desperate need of long-term economic development. Mountaintop removal has already transformed huge expanses of one of the oldest mountain ranges in the world into a moonscape of barren plateaus and rubble. Appalachian coal is “cheap” because OSM ignores its duty to enforce the Act and allows the coal industry to pass its costs onto workers, communities, local and state economies, and the environment. The mining industry naturally takes advantage of federal regulators’ failure to enforce the law. One of the worst consequences of OSM’s disregard for the law is the prevalence of mountaintop removal mines, large strip mines with attendant valley fills.”

“It is appointments like this that are causing many to become disillusioned with the Obama presidency,” stated Public Employees for Environmental Responsibility Executive Director Jeff Ruch, noting an Obama campaign promise to curb mountaintop removals from which his administration has backed away. “Putting forward a nominee who claims ignorance on a central issue so that his true position cannot be discerned is the sort of cynical politics I thought President Obama vowed to change.”

“OSM is a demoralized, hollowed-out agency and the prospects are it will stay that way,” Ruch added.

Prior to Pizarchik’s hearing in August, the Environmental Integrity Project did an overview on why Pizarchik is the “Wrong Choice for the Director of the US Office of Surface Mining Reclamation and Enforcement.”

Pizarchik’s evasive hearing testimony did little to assuage the concerns of environmentalists and coalfield citizens alike. The EIP released a fact-check follow up to Pizarchik’s vague assertions: Mining the Data:Pizarchik’s Decisions Have Been Contrary to Fact, Overturned by Administrative Law Judges, and Detrimental to Pennsylvania.

They concluded:

“Mr. Pizarchik has championed a program to dump coal ash into Pennsylvania coal mines as “a beneficial use” despite the fact that it waives safeguards such as liners, leachate collection, and cleanup standards that scientists believe are necessary to protect groundwater and surface water from contamination by the ash. At his Senate confirmation hearing, Mr. Pizarchik categorically denied that this practice endangers water supplies, stating: “we have not had any evidence of pollution of groundwater caused by the use of coal ash at these mine sites.”

Here’s their breakdown on Pizarchik’s testimony:

THE TESTIMONY: “[T]he use of coal ash at these mine sites in Pennsylvania is not polluting the groundwater and has not polluted the groundwater.”

THE FACTS: Pizarchik’s minefilling program has caused extensive contamination of groundwater.

The Clean Air Task Force’s (CATF) review of the impacts of coal ash minefilling in Pennsylvania found that contamination of groundwater was greater after ash placement at 10 of the 15 minefill sites studied. These conclusions of extensive contamination from coal ash minefilling were corroborated by three Pennsylvania scientists: two hydrogeologists and a professor of chemistry versed in coal chemistry.

THE TESTIMONY: “In each of those cases that we have looked, we have not had any evidence of pollution of groundwater caused by the use of coal ash at these mine sites.”

THE FACTS: At the PADEP, Pizarchik has dismissed evidence verifying contamination from minefilling as “outlier data,” yet his refusal to objectively review undesirable facts does not eliminate the overwhelming evidence of contamination. PADEP simply dismissed high data values in the CATF Pennsylvania minefill report as “outliers” without following procedures outlined in Pennsylvania guidance as well as federal guidance for assessing and verifying outliers or extending the “outlier” label to any data values that were low.

THE TESTIMONY: “As far as being open-minded . . . I don’t go off and do things for one particular interest group or another. That would be contrary to the law which I am charged with executing.”

THE FACTS: Pizarchik has consistently supported and lobbied on behalf of weaker environmental standards to benefit coal mining interests. Pizarchik, in his official capacity with PADEP, unsuccessfully lobbied the EPA to weaken Effluent Limitations Guidelines for manganese for the coal mining point source category. PADEP opposed federal standards for regulating minefills, stating that federal regulations were not needed for the minefilling of coal ash. These are the very regulations he would be charged with enforcing as the head of the Office of Surface Mining Reclamation and Enforcement.

A panel of scientists and legal experts from the National Research Council reached a consensus that the safeguards enforced by PADEP and other states for ash minefilling were not adequate and that a national regulation was needed to set minimum enforceable standards for all states to follow.6 In June, 2009, Pizarchik proposed a regulation (Chapter 290 to Pennsylvania’s residual waste regulations) that includes loopholes to allow PADEP to continue ignoring key recommendations of the NRC to isolate ash from water in mines and monitor it sufficiently.

THE TESTIMONY: “There are monitoring wells that are put in place to monitor the groundwater to make sure the ash does not leach any contamination out onto the site.”

THE FACTS: Monitoring plans approved by the Pennsylvania Department of Environmental Protection (PADEP) under Pizarchik have been ruled incapable of detecting offsite migration of contaminants by administrative law judges. Holding that PADEP “acted unlawfully and unreasonably by approving the Project with a deficient groundwater monitoring plan,” Pennsylvania’s Environmental Hearing Board stated: “The system is simply not capable of detecting contaminants that leave the site. If the Project results in groundwater pollution, no one will know it. The monitoring plan merely creates the illusion of protection, which is arguably worse than no monitoring at all. This is truly unacceptable, and the Department acted unreasonably and in violation of the law in concluding otherwise.”

In an August 5th letter to Sen. Jeff Bingaman, the Chair of the Senate Committee on Energy and Natural Resources, Earthjustice and Sierra Club representatives expressed their concerns regarding Pizarchik’s “promotion of coal ash disposal in surface coal mines, his permitting of dangerous valley fills, his obstruction of public disclosure of agency information, and his failure to require full compliance with bonding requirements under the Surface Mining Control and Reclamation Act (SMCRA).”

One of their main concerns dealt with Pizarchik’s “apparent lack of support for transparency in agency decision-making is a quality unacceptable for the position of Director of OSM. He has also discouraged citizen input in the permitting process.” They added: “Mr. Pizarchik joined with the Bush Administration in attempting to prevent citizens from obtaining information under the Freedom of Information Act (FOIA) by claiming that correspondence between PADEP and OSM was eligible for protection from public disclosure as “intra-agency memorandums or letters.”

“The above positions and decisions of Mr. Pizarchik conflict with the goals of our organizations to provide a healthy environment and reduce the adverse impacts from surface mining. As Director of OSM, Mr. Pizarchik will have the power to promote these views on a national scale and erode the protections intended by the Surface Mining Control Act in these critical areas.”

In their opposition to Pizarchik’s nomination, North Carolina-based Appalachian Voices raised “doubts about his ability to protect Appalachia’s dwindling water resources from mountaintop removal mining operations which are devastating our mountains and headwaters.” They concluded:

“We respectfully ask that the OSMRE be led by someone who will break the mold of indifference to landowner rights and environmental damage and “protect society and the environment from the adverse effects of surface coal mining operations.” Mr. Pizarchik is not the appropriate choice for the position, and we ask the Senate Committee on Energy and Natural Resources to reject his nomination.”

Well said.

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