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Mining causing widespread water damage, judge told

HUNTINGTON, W.Va. -- Mountaintop removal mines like the Highland Reylas operation proposed by Alpha Natural Resources are causing widespread water quality damage across the Appalachian coalfields, a federal judge was told Tuesday.

Emily Bernhardt, a Duke University aquatic ecologist, detailed what she said are the conclusions of numerous scientific studies about mountaintop removal's impacts on the region's important headwater streams.

"It's an enormous change in the chemistry of streams compared to what we see before mining," Bernhardt told U.S. District Judge Robert C. Chambers.

Bernhardt said the science is clear that mountaintop removal not only buries streams with valley fill waste piles, but also sends harmful levels of various pollution runoff into stream reaches beyond those fills.

Testifying as an expert witness for citizen groups, Bernhardt said the U.S. Army Corps of Engineers ignored this science when it approved Alpha's Clean Water Act permit for the 635-acre Highland Reylas Surface Mine near Ethel in Logan County.

Alpha hopes to employ about 100 people for six years of mining, and then create a 235-acre site with paved roads and utilities that could be used for temporary housing during flooding and other emergencies. The mine, though, would bury about 2.5 miles of streams beneath a valley fill and associated runoff-control structures.

The Ohio Valley Environmental Coalition and other citizen groups argue that the mine would add to existing pollution problems in the Dingess Run watershed, and that the corps did not allow public input on the company's proposal to mitigate mining damage.

Citizen group lawyers Joe Lovett and Jim Hecker want Chambers to block the Alpha permit and force the corps to conduct a more detailed study, called an Environmental Impact Statement, or EIS, before deciding if the project should go forward.

Late last week, Chambers refused to allow the citizens to challenge the Alpha mitigation plan, agreeing with the company that a federal appeals court ruling leaves that issue solely up to the Corps of Engineers.

Lawyers for Alpha and the Obama administration argue that same appeals court ruling severely limits what sort of evidence Chambers should consider and greatly ties the judge's hands in overruling any decisions the corps makes about mining permits.

C.J. Morris, a lawyer for the corps, has argued that citizen groups should not be able to produce new evidence, and should instead be forced to argue only over the documents the agency included in its formal permit record.

Alpha lawyer Bob McLusky complained citizen groups are inappropriately suing over the corps permit as a backdoor way to challenge decisions made by the state in the company's surface mining and water discharge permit.

Chambers has not fully weighed in on those issues yet.

But at Alpha's request, Chambers did block an effort by citizen groups to argue that the mine would add to existing public health problems recent scientific papers have linked to living near mountaintop-removal mining. The judge rejected an effort by Alpha to block University of Maryland biologist Margaret Palmer, a top researcher on mining-related water quality issues, from testifying.

While the Obama administration's crackdown on mountaintop removal slowed the issuance of new strip-mining permits across Appalachia, the U.S. Environmental Protection Agency has given its blessing to some corps-issued Clean Water Act "dredge-and-fill" permits and not stepped in to block others, such as the one for Highland Reylas.

During Tuesday's opening day of an expected weeklong trial, University of Tennessee hydro-geologist John Tyner explained what he said were major weaknesses in the way corps officials considered the Alpha mine's potential to create selenium runoff that could be toxic to aquatic life downstream.

Tyner said the corps allowed Alpha to rely on one set of coal-seam samples that predicted no selenium runoff, despite the fact that readily available data indicates the mine site would likely generate selenium.

"I believe that's an improper extrapolation," Tyner said. "It's worse than useless. I think it's misleading."

Citizen groups also argue that the corps wrongly concluded other Alpha mines in the area have not caused selenium problems, noting that streams in those areas already have high levels of the toxic pollutant.

Bernhardt walked Chambers through a list of previous scientific papers that have shown impaired aquatic life -- measured through reduced diversity of insects -- downstream from mining and valley fill sites. Bernhardt said studies have clearly shown this impairment related to high levels of electrical conductivity, caused by sulfates and other mining pollutants.

"The weight of the evidence is very strong," Bernhardt said.

Lovett asked if any peer-reviewed scientific papers have been published that contradict this conclusion. "Not that I'm aware of," Bernhardt said.

Bernhardt said that, in approving the Alpha permit, corps officials mentioned only one scientific paper about mining damage, a major U.S. Environmental Protection Agency study by agency biologist Greg Pond.

Corps officials cited that paper only to note that Alpha disagreed with Pond's conclusions, but Bernhardt said the agency cited no peer-reviewed research that supported Alpha's contention.

Lovett asked Bernhardt if the corps could have found a peer-reviewed paper that supported the company's argument. "Not that I'm aware of," Bernhardt replied.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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