By Bill Kovarik
The fight to preserve West Virginia’s Blair Mountain Battlefield has taken a new turn.

Preservation advocates thought they had won in March 2009 when the site was formally listed on the federal National Register of Historic Places.

However, the site was “de-listed” in December 2009 at the request of state authorities who claimed that re-counted property owners’ opinions supported them.

Preservationists said the recount was flawed and are making plans for a court appeal.

The 1921 Battle

Blair Mountain is the site of a five-day battle between over 10,000 union miners and the coal industry in August 1921. Thousands of shots were exchanged, and an estimated 30 men died.

The battle was “a spontaneous outpouring of rage and grief over conditions in the southern coalfields,” according to Friends of Blair Mountain. The specific spark was the murder of Sheriff Sid Hatfield by coal company detectives on the steps of the McDowell County Courthouse. No one was ever charged in the murder.

The miners marched to Logan, W.Va., to express their outrage and rescue imprisoned miners in Mingo County. They were stopped by thousands of paid coal industry employees who had taken up fortified positions at Blair Mountain.

The battle ended peacefully when federal troops arrived. Union miners surrendered their weapons, and most were allowed to go home. About 200 leaders, including union organizer Bill Blizzard, were tried for murder and treason the next year. But a jury refused to convict, and Blair Mountain became a rallying cry for organized labor in the 1920s and 30s.

The 1989 – 2009 battle

Historians say the Battle of Blair Mountain was the largest insurrection in U.S. history since the Civil War. Hundreds of books and historical papers have been written about the battle.

When a coal company announced plans for a surface mine at Blair Mountain, a grandson of one of the fighting miners who lived near the mountain, Kenny King, began working on preservation efforts.

“I just hated to see it be destroyed,” King said.

The complex process of protecting the historical site began in the 1990s. It became more complex with the state government’s refusal to help King and others, such as, West Virginia University historian Barbara Rasmussen and Appalachian State University archaeologist Harvard Ayers.

For years, the review process bounced back and forth between the West Virginia office of historic preservation and the National Park Service. In 2006, Ayers and King performed archaeological surveys of the battle site. Many others added their support, including the Society for Historical Archeology and the Society of American Archeology.

Cecil Roberts, president of United Mine Workers of America (UMWA), said in 2005: “The UMWA has always believed the Blair Mountain battle site should be preserved…What (the miners) did is a source of pride and inspiration to our families, and helps give us the strength to carry on their fight for justice. We will never forget it, nor should America.”

Finally, on March 30, 2009, the Park Service announced that the battlefield site had won a place on the register. Preservationists believed they had won.

The “de-listing” of Blair Mountain

Historic significance is not the most important criteria for historic preservation under current federal law. Property owners also have to agree to the listing.

Shortly after the formal listing of Blair Mountain on the national register, West Virginia State Historic Preservation Officer Randall Reid-Smith claimed to have discovered eight letters, which had been “unintentionally not counted.” This, Smith claimed, changed the count of landowners to 30 who did not agree with historic preservation and 27 who did.

But in September 2009, Ayers and West Virginia attorney John Kennedy Bailey found serious errors in Reid-Smith’s list. Two property owners who had supposedly objected to historic designation were actually deceased, and ten more property owners had been overlooked. Smith, who is not a trained historian, did not dispute the findings, but refused to reconsider the delisting.

“The West Virginia bureaucracy has ignored any information that contradicts their own cursory and flawed research,” Ayers said.

On Dec. 30, 2009, the National Park Service Interim Keeper of the National Register, Carol Shull, granted the request to delist.
Shull and Smith both refused to comment for this article.

However, a park service web site notes that delisting usually occurs when “property is altered so that it has lost its ability to convey its national significance.” Most examples of delisting include historic houses where there has been a fire or a long period of neglect.

“This action does not stand alone but is part of a deliberate effort to erase Appalachian history,” said Wess Harris, editor of “When Miners March,” a book documenting the union’s side of the battle of Blair Mountain.

“We have been wondering why the State Historic Preservation Officer worked so hard to get the battlefield off the Register list,” said Ayers.

Since it is still eligible for listing, West Virginia state officials said that this status “offers protection from federally funded or licensed adverse actions.”

Not so, according to a February 2010 legal analysis. By law, the state, not the federal government, can decide what should be done with unprotected historical property. This can include issuing mine permits.

The delisting will be appealed in court, and a letter writing campaign to the National Park Service is under way, according to the Friends of Blair Mountain. For more information visit FriendsOfBlairmountain.org.

An Orwellian approach to Appalachian history

By removing federal protection from the Blair Mountain Battlefield site, state and federal officials have abrogated a sacred trust. Even worse, by removing the protection in an underhanded manner, and ignoring evidence of skullduggery, they have set a scandalous, shocking and inexcusable precedent.

No one questions the fact that the Blair Mountain Battlefield is a site of major national historic significance. No one has challenged the many leading historians and historical organizations that have presented mountains of evidence about the 1921 armed confrontation between thousands of union miners and coal industry mine guards.

Yet the process for protecting historic sites through the National Register of Historic Places requires the agreement of landowners, and that process is subject to the worst kind of political abuse.

Originally, a majority of 57 landowners agreed to the protection. After decades of very difficult work, the site was listed in the Register in April 2009. However, only a few days later, the state official responsible for counting letters of support from property owners suddenly “discovered” more letters. West Virginia then began the unprecedented process of delisting the site.

Advocates for historic protection uncovered extraordinary flaws in the process. Two of those who supposedly objected happened to be deceased. In addition, preservation advocates found another 13 property owners who had not even been contacted.

Although faced with new evidence, state officials refused to reconsider. But they did offer a paltry consolation prize by assuring preservationists that the site’s “eligibility” for listing would still offer protection in the future. A legal analysis has now found that these assurances were inaccurate, to say the least.

In the book 1984, George Orwell said: “He who controls the past controls the future.” In that respect, the West Virginia state historic preservation office ought to be renamed the Ministry of Truth.

Unless the courts overturn the delisting, bulldozers will soon bury a precious piece of Appalachia’s history.

Friends of Blair Mountain are encouraging people to write to Carol Shull, keeper of the National Register of Historic Places. For more information visit their website at FriendsOfBlairMountain.org.

By Jillian Varkas

The Portrait Story project came to the southern highlands in March 2008 to continue a legacy of capturing images and stories to identify with the region through the eyes of its people.

The artist, Francesco Di Santis, had recently completed a portrait project of Hurricane Katrina victims. Days after the hurricane devastated the Louisiana and Mississippi Gulf Coast, di Santis came to the area and stayed for 15 months drawing portraits of victims, only asking for their stories.

Many in the environmental movement for Appalachia felt the project could show the public the impacts “King Coal” has had on the lives of people who feel a connection to the region.

The project began as a five-month quest into the coalfields where sympathizers had organized to fight the consequences of mountaintop removal coal mining.

As the project developed into a much larger undertaking, Di Santis quickly realized that if the voices from throughout Appalachia were to be heard, he would have to cover thousands of square miles. After two years, he had taken portraits of thousands of people throughout seven states.

The artists’ spirits were bolstered by an incredible desire to participate. Dozens of families invited the artists into their households and spread the word to family and friends.

Di Santis, drew simple but strong portraits with the request that people would write their own personal narrative.

“The media infrastructure of The Portrait-Story Project is the participants’ handwriting on the same physical page as an original portrait of themselves,” said Di Santis.

Subjects wrote about folk culture, family, stories of the old United Mine Workers, and how surface mining has impacted their lives and the land. Many of the stories related the longing for peace to return again in the mountains.

One man he portrayed wrote, “I don’t want to be an old man in a plastic house next to a golf course under a black sky. I want to sit by a clear stream in the Blue Ridge, talking to salamanders as big as my arm, watching the world become wiser.”

After much anticipation, the public will be able to view Voices for Appalachia, A Portrait-Story Project, Written and Narrated by Hundreds. The art series will be displayed March 2 to 27 at the Unitarian Universalist Church in Chattanooga, Tenn., and then April 2 to 27 at Rosetta’s Kitchen in Asheville, N.C.

To request the art series in your community visit UnitedMountainDefense.org.

To view the entire art series, click to VoicesForAppalachia.org.

Reported by Kyle Wolff

TVA’s environmental policies are putting low income Americans at risk, according to the nation’s most prominent advocate for environmental justice.

“We take your poison for a price,” said Dr. Robert Bullard on TVA’s decision to ship coal ash from spill in Kingston, Tenn., to waste disposal facilities near poverty-stricken neighborhoods in Uniontown, Ala.

Dr. Bullard, director of the Environmental Justice Resource Center at Clark Atlanta University, delivered his message to a packed Lipinsky Auditorium at the University of North Carolina-Asheville on Jan. 20, 2010.

In his presentation, Dr. Bullard challenged government and industrial policies that place low-income minority populations at special risk. His example of this was Uniontown, an area receiving waste from an environmental disaster that happened 300 miles north of them, in a county with a population that is 88 percent African American.

Environmental justice, as defined by Dr. Bullard and other advocates, is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations and policies.

Dr. Bullard explained that the TVA had to get rid of the coal ash mess, and they unjustly sent it south. He said Perry County was living with the effects of an “out of sight, out of mind” mentality by EPA and TVA.

By Maureen Halsema
Coal has been a keyword in many recent political discussions across the nation as bills addressing mountaintop removal and coal wastes have been submitted to state and national legislatures for review.

Clean Water Protection Act / Appalachia Restoration Act

The Clean Water Protection Act (H.R. 1310) in the U.S. House of Representatives and the Appalachia Restoration Act (S. 696) in the U.S. Senate would amend the Clean Water Act to protect waterways from valley fills associated with mountaintop removal. These two bills have been presented to Congress and continue to gain cosponsors.

As of February 26, 164 congressional cosponsors support the Clean Water Protection Act and 10 senators are cosponsoring the Appalachia Restoration Act.

From March 6 to 10, concerned citizens from the coalfields and across the nation will gather in Washington D.C., to speak to Congress about this legislation.

Kentucky Stream Saver Bill

The Stream Saver Bill (H.R. 104), is a proposal to amend previous legislation which relates to Kentucky’s “Restoration of approximate original contour” regulation. The proposed bill would prohibit permits from allowing the disposal of toxic coal mining wastes into Kentucky waterways. In addition to managing the waste disposal, the bill would also require that surface mined areas be reclaimed to their approximate original contour taking into account both the configuration and the area’s elevation prior to the introduction of mining practices.

According to the Kentuckians for the Commonwealth (KFTC), this bill was the first of its kind when it was originally introduced in 2005.

This year, Sen. Kathy Stein submitted the Stream Saver Bill (S. 139) to the state Senate and Rep. Tom Riner submitted the bill (H.R. 396) to the Kentucky House of Representatives.

“We are also working on drafting legislation that would go beyond this, that would be a ban on mountaintop removal,” said KFTC.

Tennessee Scenic Vistas Protection Act

The Tennessee Scenic Vistas Protection Act (S. 1406/H.R. 899), also known as the Water Quality Control Act, would limit the Tennessee Department of Environment and Conservation (TDEC) from approving certain types of surface mining permits based on outlined conditions. The bill was introduced to the Tennessee House of Representatives by Reps. Bill Dunn and Michael Ray, while Sens. Bill Ketron and Doug Jackson introduced it to the Tennessee Senate.

According to the text of the bill, permits would not be issued or renewed if the surface mining operation or its waste, fill or in-stream treatment takes place within 100 feet of any Tennessee water system. A permit that would improve the quality of a body of water previously impacted by mining practices would, however, be eligible for issuance or renewal.

Another provision of the bill would prohibit permits that would certify surface mining at and above 2,000 feet elevation from sea level if it would disturb a ridgeline. The exception to this rule would be if the permit required some surface mining in order to conduct underground mining, if approved by TDEC.

VA Stream Saver Bill

The Virginia Stream Saver Bill, (S. 564) would end the burial of headwater streams in Virginia with wastes from mountaintop removal coal mining.

According the Stream Saver Bill, introduced by Senator Patricia Ticer, “No spoil, refuse, silt, slurry, tailings, or other waste materials from coal surface mining and reclamation operations will be disposed of in any intermittent, perennial, or ephemeral stream.”

After the state held a public hearing on Feb. 11, in front of the Senate Agriculture, Conservation and National Resources Committee in Richmond, Va., the committee voted on Feb. 15, to carry the bill over for consideration in 2011.

“While it will not be voted on this year, it provided a unique opportunity to raise the level of awareness about mountaintop removal in Virginia,”said a spokesman for the environmental coalition Wise Energy for Virginia. “We look forward to continuing to educate legislators and citizens over the rest of the year so that we can have an even larger impact during next year’s Virginia General Assembly.”

West Virginia Sludge Safety Bill

The Sludge Safety Bill, (S. 568) would prohibit issuing any new permits or modifying previously issued permits for coal slurry sites in West Virginia.

A study was mandated by Senate Concurrent Resolution 15 in March 2007, and the results were submitted to the State Legislature for review.

In the West Virginia Department of Environmental Protection’s (WVDEP) report, “An Evaluation of the Underground Injection of Coal Slurry in West Virginia,” the agency concluded that “Effective immediately, the WVDEP will impose a moratorium on the approval of injection of coal slurry into mine voids in which coal slurry injection has not previously been approved under the modern era program.”

Coal slurry sites are areas that coal companies are permitted to inject coal slurry into abandoned underground mines, such as in Mingo and Boone counties.

Currently, the Sludge Safety Project—a collaborative effort between several West Virginia organizations—is composing a unified Slurry Bill to be introduced in the State Senate and House during the 2010 session.

Revisiting TVA’s Coal Ash Disaster

Mountains of coal ash still tower over Swan Pond Road near the Kingston Fossil Plant, the site of the 2008 coal ash disaster. Photo by Steve Scarborough.

Over a year after the Dec. 22, 2008 failure of TVA’s impoundment dam released 5.4 million cubic yards of coal sludge, ash still covers the land and clouds the river. In spite of TVA officials’ assurance that the cleanup would last three months and the waste was safe, studies and reports of health concerns suggest otherwise and a final clean up date is years away..

Families Struggle in the Aftermath

By Maureen Halsema
Gary and Pam Topmiller are the last remaining homeowners living in a ghost town on the Emory River. 

As they drive to what they once considered their dream home, they pass rows of houses bearing white notices on the doors of recent acquisitions by the Tennessee Valley Authority. 

“Just about everybody around here that left has told us the same thing,” Pam Topmiller said. “They left because of the health scare.”

The Topmiller’s home is just across the river from the TVA’s Kingston Fossil Plant, site of the coal ash disaster of Dec. 22, 2008. Early that morning, a tsunami of 5.4 million cubic yards of coal ash hit the Emory River and the once-thriving neighborhood. 

In terms of toxins released, it was the largest single environmental disaster in recorded history. 

Fly Ash Flu

Over the last year, the Topmillers said they have experienced mounting health problems including nosebleeds, chronic headaches, and respiratory complications. 

“We got what we call the fly ash flu,” Gary Topmiller said. “We had to go to Nashville to a doctor down there and he said for us to get out of here, but we don’t have any place to go.” 

Not far away on Quarry Road, Rev. Peggy Blanchard is raising her great-granddaughter, Julianna, who is five years old. She worries about the potential health impacts related to fly ash.

“We are concerned in terms of exposure to ourselves but we’re mostly concerned about Julianna because not only is this a cumulative thing over a lifetime,” Blanchard said, “but also at her age she’s very much still in the process of neurological development and you don’t want anything that is going to have a negative impact on that.”

According to the Tennessee Department of Health, “If dust suppression measures should fail and particulate matter is present in concentrations greater than National Ambient Air Quality Standards due to the coal ash becoming airborne for periods longer than one day, the department concludes that particulate matter from airborne coal ash could harm people’s health, especially for those persons with pre-existing respiratory or heart conditions.”

“If there is a medical concern, they are welcome to go to the claims office and file a claim,” said Barbara Martocci, a TVA spokesperson.

Oak Ridge Associated University (ORAU) is handling the medical claims that residents file with TVA.
According to Pam Bonnee, director of communications at ORAU, 314 people have signed up for toxicology screenings, testing for aluminum, arsenic, barium, beryllium, chromium, cobalt, copper, nickel, selenium, thallium, and vanadium.

Gary Topmiller walks to the dock of his former dream home where the waters have been contaminated by toxic pollutants from the coal ash spill. Photo by Maureen Halsema.

A Pricey Proposition

Steve Scarborough, chairman of the Conservation Commission, a section of the Tennessee Department of Environment and Conservation, has property out on Swan Harbor. Real estate was Scarborough’s investment plan for his family, and now he cannot withdraw the funds from his investments.

“When you sell your property to TVA, they give you a price on the property and they also have you sign a medical waiver,” Scarborough said. “You are required to sign the waiver saying that you cannot sue them for any medical effects. It’s an onerous piece of paper to have to sign. If it were me presenting this to folks, I couldn’t do it in good conscience.”

“They sign a waiver about not coming back against TVA once they get paid for the property,” Martocci said.
The Topmillers also want to sell their house to TVA, but they don’t like the strings attached to TVA’s offer either.

“If you sign that paper, TVA is no longer liable for anything in the future, like if you come up with cancer, they are not liable,” said Pam Topmiller. “That is what you sign off on and that is what we would not sign.”

The Topmillers’ neighbor, Glenn Daugherty, has a 1.25 acre lakefront lot. Since the spill, Daugherty said he has experienced nosebleeds, watery eyes, and chronic sinus issues.

Daugherty said that TVA told him they were going to make him another offer after he declined their $140,000 offer for his lot. “I just wanted fair market value for it,” Daugherty said. “I have yet to get that offer.”

“TVA is trying to say the housing market was down already, you can’t try to recoup your loss at our expense,” Blanchard, who purchased her house prior to the spill and would like to take her family away from the disaster site, said. “Excuse me, there is a big difference between having a decline in value and having a crash in value, which is what has happened to us. Who would buy our property? I don’t know, would you buy property, even after all these years, where Love Canal was?”

Not Affected

How does TVA determine if residents are affected by the coal ash spill?

“It is people who could be bothered by the noise, by the equipment, by the spill itself, the water surge, the ash, and the truck traffic,” said Martocci. “If they are affected, those pieces of equipment are touching them or around them or causing them so much disturbance that they cannot sleep or do their work. That is the sort of thing that they look at.”

Blanchard and Scarborough both said TVA told them that their properties were outside the affected area of the spill and they would not be compensated.

“You don’t tell somebody if they are affected, you ask them,” said Blanchard. “And yes, we are definitely affected.”

Blanchard lives by the quarry, where at the height of the cleanup she reports having up to 800 gravel truck trips passing by her home each day. 

Rogers Group Inc., increased the volume of extraction from the Roane County Quarry near Blanchard’s home in order to obtain materials TVA needed to build the weirs and dike in the river to keep the sediments contained in the disaster site.

“So what do we get,” Blanchard said. “All of this dust and blasting from the quarry, which we did not have before, not to mention, all of the traffic. We’ve got fly ash coming from the spill site and dust coming from the quarry. Don’t tell me I’m not affected.”

Scarborough echoed Blanchard’s frustration.

“My property was on the market when this disaster occurred,” Scarborough said. “Since then we have had one offer of pennies on the dollar of the appraised value. It is unsellable because of TVA, but they tell me I’m not affected.”

“They tell me that I’m outside the affected area,” Scarborough continued. “How can you be outside the affected area when the river is closed and they are dredging in front of it? We’ve also been told that mortgage lenders won’t take mortgages from this area on the secondary market as well. This is an impossible situation for us.”

The cleanup effort still has a long way to go.

Federal officials have presented three cleanup plans to the public for review in a document called “Engineering Evaluation/Cost Analysis.”

“We don’t know a final date,” Martocci said. “We’re looking at around 2013, but it may be longer.”

Lawsuits Stalled Over TVA Immunity Claims

By Julie Johnson
Lawsuits against the Tennessee Valley Authority over the Kingston coal ash disaster remain stalled following TVA’s claim that citizens cannot sue the agency.

Over 560 plaintiffs are represented in 57 lawsuits against TVA over the December 2008 failure of a coal ash impoundment dam. In April 2009, TVA asked a federal judge to dismiss all the cases, citing a Department of Justice ruling that protects federal agencies from civil suits by citizens. A decision has yet to be made on this request.

“Our primary concern is the health impact of this massive release of toxic materials into our community,” said Levi Giltnane, a Kingston resident who owns both property near the plant and a small real estate business.

“We have a two-year-old daughter, Skylar. For her and for the other children in this area, we want the TVA to give us honest answers about what is in this toxic ash and we want the TVA to fund medical testing for our family and other families who have been exposed to the massive amounts of toxic materials the TVA has dumped in our community.”

In December, nearly one year after the spill, the Environmental Integrity Project (EIP) sent a letter to the White House, asking that President Obama and the Department of Justice to take measures to hold TVA accountable.

“TVA raises issues of federal ‘sovereign immunity’ to avoid penalties in environmental enforcement cases filed by citizens in federal court, yet TVA does not receive federal funds or tax dollars drawn from the U.S. Treasury,” said EIP in their report.

The letter, as well as an in-depth report completed by EIP, states EIP also calls for much more rigorous environmental oversight of the utility, and the elimination of federal protections that allow TVA to keep the grid in a non-competitive lock down.

According to EIP’s letter, “removing these special protections would make TVA more competitive, result in a more energy-efficient grid, and create incentives for TVA to stay ahead of changing environmental and energy regulations.”