Crimes Against Nature (16 page)

Their fears are not so far-fetched. In 1972, the Buffalo Creek Dam southwest of Charleston collapsed, burying 120 souls and several communities. Just four years ago, on October 11, 2000, a slurry pit in Inez, Kentucky, owned by Martin County Coal, another subsidiary of Massey Energy, burst into subsurface mine shafts, flooding downstream communities. The 300-million-gallon spill was the largest in American history and, according to the EPA, the greatest environmental catastrophe in the history of the eastern United States. Thick black lava-like toxic sludge containing 60 poisonous chemicals choked and sterilized 100 miles of rivers and creeks and poisoned the drinking water in 17 communities. Unlike some other slurry disasters, no one died this time, but hundreds of residents were sickened by contact with contaminated water.

Jack Spadaro was a member of a team of geodesic engineers selected by the Mine Safety and Health Administration, a division of the U.S. Department of Labor, to investigate the spill. Spadaro, the superintendent of the Mine Health and Safety Academy where MSHA trains its engineers, is the nation’s leading expert on slurry spills, having spent 30 years studying slurry dam failures and how to prevent them.

From the outset, the coal industry kept a wary eye on the Massey investigation, since it would raise the obvious question of whether slurry impoundments should ever be permitted over abandoned mines. Of the 650 existing impoundments, at least half are in this tenuous situation. Conditions under the surface haven’t been investigated for any of them. “I’m worried that the potential for more breakthroughs is great,” Spadaro told me. “That question certainly would have been addressed in our report.

“We had a team of engineers who were very effective. We were geotechnical engineers determined to find the truth,” Spadaro continued. “We simply wanted to get to the heart of the matter — find out what happened, and why — and to prevent it from happening again.”
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During Spadaro’s investigation, however, there was a regime change at the White House. And it became clear that George W. Bush and his coal cronies were just as concerned about the Inez disaster — for very different reasons. Spadaro soon found that all the hard work by his team “was thwarted at the top of the agency by Bush appointees who obstructed professionals trying to do their jobs.”

Those Bush appointees all had coal-industry pedigrees. The new Bush team at the Department of Labor included Secretary Elaine Chao, a former fellow of the Heritage Foundation,
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who is the wife of Senator Mitch McConnell of Kentucky, the Senate’s largest recipient of coal-industry largesse. As the investigation moved forward, Massey Energy contributed $100,000 to a Republican Senate campaign committee controlled by McConnell. Chao appointed Dave Laurisky, a former executive with Energy West Mining, a Utah coal company, to be director of MSHA. Laurisky’s deputy assistant secretary was John Caylor, an alumnus of Amax Mining; his other deputy assistant, John Cornell, had worked for both Amax and Peabody Coal. Together, this group wasted no time in putting the brakes on the investigation.

Tony Oppegard, Spadaro’s boss, whom the team regarded as a strong leader with unquestioned integrity, was fired on the day of Bush’s inauguration. “He was getting down to the root of what was going on,” Spadaro says. “He was simply fired. The people at Massey knew before he did.” Spadaro recalls how Oppegard’s replacement, Tim Thompson, laid things out at the first meeting he attended: “We are going to terminate this investigation and make sure that no fingers are pointing at persons within this agency.”
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The original team had intended to charge Massey with knowing and willful violations of the law. The company had ignored safety recommendations arising from two previous slurry spills; these recommendations came from both the MSHA and its own engineering firm. Massey’s engineer had testified following a 1994 accident that if the recommendations were ignored, a new spill was “virtually inevitable.” But Thompson reduced eight citations for criminal negligence to two, choosing the weakest — and one of those was later thrown out by the administrative judge. “Massey paid a pathetic $5,600 fine for doing billions of dollars in damage,” said Spadaro.

All eight members of the team were pressured to sign off on the whitewashed investigation report. Ronald Brock, one of the team’s engineers, refused until Laurisky directly ordered him to sign, according to Spadaro. “Ron Brock’s wife was suffering from cancer and he felt he could not afford to lose his job,” said Spadaro. “They forced it down his throat.”

Spadaro flat-out refused to sign the report and has been harassed ever since. At one point, he says, department officials lured him to Washington for a meeting, and while he was there three men raided his office, changed his locks, searched his papers, and disassembled frames holding pictures of his wife and daughter. “They Gestapoed me,” said Spadaro. “I guess they thought I had secret codes written on the back of those photos.”

In February 2004 the federal government’s independent Office of Special Counsel began an investigation into whether Spadaro was being disciplined because he is a whistle-blower.
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Less than a week later the MSHA demoted him and reassigned him to a job in Pittsburgh.
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“I’ve been regulating mining since 1966,” Spadaro told me, “and this is the most lawless administration I’ve encountered. They have no regard for protecting miners or the people in mining communities. They are without scruples. I know that Massey Energy influenced Bush appointees to alter the outcome of our report! The corruption and lawlessness goes right to the top.”

In addition to Chao, McConnell, and Laurisky, big coal has placed a legion of guardian angels in the Bush government, including Jeffrey Holmstead, the EPA’s assistant administrator for the Office of Air and Radiation. Like many people in the current administration, including George Bush himself, Holmstead can be personable and charming, and like the others, he has elected to spend his talents shilling for industry.

Holmstead has been a lobbyist and attorney for several big polluters and their trade associations,
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including the American Farm Bureau Federation and the Alliance for Constructive Air Policy, a front group for big air polluters, four of which were defendants in major Clean Air Act enforcement actions for their violations of the New Source Review standards. He has also served as an adjunct scholar with the Wise Use group Citizens For the Environment. CFE pitches clear-cut logging as good timber management and deregulation as the solution to most environmental problems. CFE took $700,000 from the Florida sugar industry to help derail Everglades restoration and received $1 million from Philip Morris to fight cigarette taxes.
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Holmstead maintained close personal and professional ties with his former clients that blurred the line between government service and venal self-interest. Within days of his appointment, his buddy David Rivkin landed a job at the law firm of Baker & Hostetler as a lobbyist for Atlanta-based Southern Company,
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the nation’s number two coal plant polluter
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and the utility that led the charge to kill the New Source Review rules, which require grandfathered coal plants to install modern pollution-control equipment. One day after Holmstead accomplished that mission, his associate administrator for congressional affairs, Ed Krenik, took a lucrative job at Bracewell & Patterson, the Houston-based lobbying firm that led Southern Company’s efforts against the NSR. Holmstead’s chief of staff, John Pemberton, left that week to become Southern’s top Washington lobbyist.
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Holmstead has been dogged by accusations of ethics violations throughout his EPA career. On July 14, 2003, Senator John Edwards of North Carolina called for Holmstead to resign for suppressing scientific research that conflicted with President Bush’s pollution agenda and for routinely lying to hype Bush’s efforts to roll back environmental regulations. “Jeff Holmstead is an extreme example of this administration’s problem with telling the truth when it conflicts with its political agenda,” Senator Edwards said. “Instead of protecting the air, Mr. Holmstead is protecting the energy industry by hiding the truth. He needs to go.”
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An October 2003 report by the GAO indicated that Holmstead had intentionally deceived two Senate committees in an appearance 15 months earlier. At issue was his claim that the administration’s proposed scrapping of the NSR rules would not affect 75 ongoing prosecutions and investigations against corporations that had violated those standards.
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Among the targets of the prosecutions were eight power plants owned by Southern Company’s subsidiaries.
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As it turns out, Holmstead had discussed the impacts on numerous occasions with senior EPA officers. They included Sylvia Lowrance, acting chief of the Office of Enforcement and Compliance Assurance; Eric Schaeffer, head of the Office of Regulatory Enforcement; and Bruce Buckheit, director of the Air Enforcement Division, all of whom have left the EPA because they say they were disgusted by the administration’s pandering to polluters.
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They and many others had warned Holmstead that their cases would be compromised. “It was clearly not true what Holmstead said,” I was told by Buckheit.

The GAO’s report prompted Senators Jim Jeffords, Patrick Leahy, and Joseph Lieberman to call for further investigation by the EPA’s inspector general.
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Leahy, the ranking Democrat on the Judiciary Committee, said that the report indicated that Holmstead “intentionally misled Senate committees last year and has continued to work to get industry polluters off the hook and out of court.” Leahy accused Holmstead of committing fraud and “endangering the health of the American people.”
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Endanger our health he has. The EPA’s own consultants estimated that air emissions from just 51 of the coal plants that were targets of NSR enforcement actions shorten the lives of at least 5,500 people per year. In addition, polluted air from these plants triggers between 107,000 and 170,000 asthma attacks per year, many of them in children.
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In 2002, Edwards asked Holmstead for a quantitative study of the NSR proposal’s effect on human health. He and 43 Senate colleagues followed up the request in writing. Holmstead has never provided the analysis.
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The NSR rollback was only one handout to King Coal that came courtesy of Holmstead. In November 2003, former Utah governor Mike Leavitt replaced Christie Whitman as EPA administrator. Leavitt made his bones with his new bosses in one of his first official acts: proposing weaker regulations for the mercury spewing out of power plant smokestacks. He gave a billion-dollar favor to King Coal and the utilities, while America’s children got the back of his hand. Jeff Holmstead was the deal’s architect.

Mercury is a potent brain poison. Even minuscule amounts can cause permanent IQ loss, along with blindness and possible autism in children who are exposed while in the womb.
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As noted earlier, the EPA now estimates that 1 of every 6 American women carries unsafe levels of mercury in her blood, putting 630,000 American newborns a year at risk.
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High exposure in adults can lead to kidney failure, tremors, heart disease, severe liver damage, and even death.

I recently had my own blood tested for mercury. The sample came back with contamination of 11 micrograms per liter. Levels above 10 micrograms are cause for concern, according to Dr. David Carpenter of the Institute for Health and the Environment at the State University of New York at Albany. As a healthy adult male, I’m not too worried. But Dr. Carpenter told me that a pregnant woman with those levels would have a child who was cognitively impaired. This made me pause. “You mean ‘might’?” I asked him. He replied, “No, the science is pretty certain that those levels would impact a baby’s IQ.”
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Humans get contaminated mainly by eating fish. Ocean-going fish — including favorites like swordfish and tuna — along most of America’s coastlines are so contaminated with mercury that they are unsafe to eat regularly. Even more alarming, 17 states have issued warnings about eating fish from
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of their streams and lakes, including the five Great Lakes and their tributaries. Forty-five states have issued advisories on mercury in fish for some water bodies.
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Most mercury in fish comes from contaminated rain and snow that falls into rivers and lakes. According to the EPA, coal-burning power plants account for 40 percent of the airborne mercury in the United States.
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Because of the catastrophic health impacts, the Clinton administration decided to regulate mercury emissions from power plants as a hazardous pollutant under the Clean Air Act. That move would have required power plants to reduce their mercury emissions by roughly 90 percent within three years. Technologies now available or expected to be available soon can eliminate most of the mercury from utilities at a cost of less than 1 percent of plant revenues, according to the EPA. This seems like a good deal for the American people.
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But the power industry lobbied aggressively against the Clinton-era reforms. The campaign included several Texas companies, whose power plants spew more mercury than those of any other state. Southern Company also lobbied hard. In his briefing to coal moguls in 2001, the EEI’s Quin Shea reassured his audience that the coal industry and the Bush administration had a plan that would ensure that no power plant would be required to achieve anything close to a 90 percent reduction in mercury pollution, regardless of what the Clean Air Act said.
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Their plan was Jeffrey Holmstead.