In late 1999, state regulators, environmentalists and coal operators sat down to write new rules they hoped would help regenerate forests on mountaintop removal sites.
Coal industry officials said there was a guy at Virginia Tech who could help. James Burger, a professor of forestry and soil sciences, had been researching reforestation of mined land for years.
The West Virginia Coal Association picked Burger as one of its representatives on a team that would write the new Department of Environmental Protection rules.
Nearly five years later, at least one coal company has decided to go after Burger, by threatening to withdraw funding for the research center where he works.
The rules Burger helped write required coal operators to do something they didn’t want to do: Save the topsoil from mine sites, and put the material back when they’re done mining.
Earlier this year, Burger testified in a state Surface Mine Board case. The West Virginia Highlands Conservancy wants the board to require all strip mines in the state to follow Burger’s proposals.
Burger was supposed to testify again last week, to rebut the comments of a West Virginia University researcher hired by Arch Coal Inc. to help it defend the permit being challenged in the case.
Instead, the hearing ended with testimony from Gene Kitts, a former Massey Energy executive who is now vice president for environmental and technical affairs at Arch Coal.
Bob McLusky, a lawyer for Arch Coal, showed Kitts a letter that Burger had written to the board of the Powell River Project.
The project is a cooperative program of Virginia Tech, other schools and industry. It’s where Burger does most of his research. Kitts explained that Arch Coal is among several companies and industry groups that provide money to fund the Powell River Project.
Company officials were unhappy, Kitts told the mine board, because it had “become apparent that Dr. Burger was actively challenging an Arch permit.” Arch Coal, Kitts testified, began to question the “wisdom of continuing to make contributions to the Powell River Project.”
Kitts said that another Arch Coal official, John O’Hare, took the company’s complaints to the Powell River Project board.
“We questioned the direction that Dr. Burger’s research was headed,” Kitts said. “We have said that his research needs to be more balanced.”
Burger wrote the letter that McLusky had Kitts explain to the Surface Mine Board. In it, Burger said that he had revised his latest research proposal to address “the perception that I am working counter to the coal industry’s interests.”
Over the last 20 years, Burger has published more than three dozen papers on reforestation of mined lands. The Powell River Project lists the publications on its Web site.
“When the research began in 1980, the researchers’ bias was that mined areas are ‘moonscapes’ where it would be a challenge to get anything to grow,” the Web site says. “They soon learned, however, that this initial bias was in error, that mined areas have the potential to be highly productive forests.”
In his work, Burger found that trees would grow well on mined land if operators would “construct a soil medium from weathered sandstone overburden materials, mixing in minor amounts of native topsoil to provide a source of native seeds whenever possible.”
Harold Burkhart, head of the Virginia Tech forestry department, said that he is not aware of any scientific criticism of Burger’s work.
“His work, like all scientific work, has to withstand the scrutiny of peer review, and his work has done that,” Burkhart said.
Terry Sammons, a coal industry lawyer who worked with Burger on the West Virginia reforestation rules, said he was always impressed by the professor’s work.
“My experience with Dr. Burger has been very good,” Sammons said last week. “He’s a well-respected researcher and a professional.
“I think that the commercial forestry regulations are very valuable,” Sammons added. “It’s an opportunity for real reforestation, which is a great need on surface-mined land.”
Charleston lawyer Brian Glasser, who represented the DEP when the rules were written, said that Arch Coal was wrong to threaten to pull Burger’s funding.
“[Burger] dedicated his life to finding better ways to reforest mined lands, and because they don’t like what his scientific findings were, they try to destroy him by going after his funding,” Glasser said.
Burger did not return a phone call. Neither did other officials from the Powell River Project or Virginia Tech.
Expanding the rules
Last year, the Highlands Conservancy launched a legal effort to force all strip mines — not just those with approximate original contour variances — to follow Burger’s plan.
Joe Lovett, the Conservancy’s lawyer, appealed a permit that the DEP had granted to Arch Coal subsidiary Coal-Mac Inc. The company wants the 850-acre permit to expand its Phoenix Complex along the Logan-Mingo border.
In the appeal, Lovett argues that the DEP wrongly approved Coal-Mac’s proposal to use a topsoil substitute. Under state and federal rules, Lovett says, the DEP can only approve topsoil substitutes that are “equally suitable for sustaining vegetation as the existing topsoil.”
During a hearing in January, Burger said that Coal-Mac’s chosen topsoil substitute — a gray, unweathered sandstone that will be uncovered by the company’s mining — is not as good as the brown, weathered sandstone the trees are currently growing in.
“That doesn’t mean that these gray sandstones won’t grow trees,” Burger said. “They will grow trees. But we’re also interested in productivity — in the site being as productive as it was before.”
At a March hearing, a mining engineer hired by Coal-Mac testified that Burger’s plan would make mining more difficult and more expensive.
“Before you go in and mine, you would have to go and remove all the brown stuff,” said the engineer, Barry Doss. But with large-scale mountaintop removal, Doss said, “When you drill it and shoot it, you sort of mix it all up.”
Last week, Paul Ziemkiewicz, director of WVU’s National Mine Land Reclamation Center, told board members that his preliminary work at Arch Coal’s Samples Mine has found that trees will grow well in the unweathered, gray materials that Coal-Mac wants to use.
“It actually works better,” Ziemkiewicz said.
On cross-examination Lovett asked Ziemkiewicz for copies of any peer-reviewed articles he has published on this research.
“I haven’t published any articles on this,” Ziemkiewicz responded.
Ziemkiewicz complained, though, that Burger has never directly compared the tree-growing potential of the material Coal-Mac proposes to use. Ziemkiewicz is working on such a study at Arch’s Samples Mine, he said.
‘A public servant’
During last week’s hearing, McLusky had Kitts read a short portion of Burger’s letter to the Powell River Board aloud.
“Other, unweathered rock types may be suitable for trees, but they have not been tested,” that part of the letter said.
Burger wrote that he had changed his latest research proposal to test the same sort of material that Coal-Mac wants to use. “We hope to learn more about these materials with our ongoing research,” he wrote.
McLusky told the board, “This document is a concession that he doesn’t have the data.”
In the letter, Burger also said that his goal has always been, “to find out how to restore forest land capability as economically as possible within the constraints of mining practice and current regulations.
“But in any case, as a public servant, an employee of a land grant university with both research and outreach missions, and paid by all taxpayers of the commonwealth, I am compelled to share the results of our research with our entire clientele public,” Burger wrote.
“I am not in a position that allows me to exclusively work for and confine the results of my research to the coal industry.”
At the end of last week’s hearing, mine board Chairman Tom Michael said he was troubled by what happened to Burger.
“I personally hate to think that a Ph.D. can come in here and give an honest opinion to this board, and be threatened with the loss of his funding for offering an opinion,” Michael said. “I hope that isn’t what happened.”