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Stream burials action surges

Wayne Sears has lived on his 115 acres along Hominy Creek for more than 18 years. He and his neighbors love to fish for the Nicholas County stream’s native trout.

“I fish it quite a bit,” Sears said last week. “A lot of people swim and a lot of people fish in it.”

One of Sears’ neighbors, though, is named Green Valley Coal Co.

Upstream from Hominy Creek, along the stream’s tributaries, the Massey Energy subsidiary dumps the waste from its nearby coal preparation plant.

Sears and other members of the Hominy Creek Preservation Association are worried that iron discharges and silt runoff from the waste dumps are harming the stream.

Last week, a federal judge temporarily blocked a permit for the initial phase of Green Valley’s newest waste-dump proposal. Green Valley wants to bury 431 feet of a stream that feeds Blue Branch, an important tributary of Hominy Creek, with preparation-plant refuse. The U.S. Army Corps of Engineers approved the plan, as did the West Virginia Department of Environmental Protection.

Starting Monday, U.S. District Judge Joseph R. Goodwin will hear more detailed testimony and arguments about that fill. The judge will decide whether to issue a longer court order to block the corps’ approval of the project.

At the same time, environmental groups have asked Goodwin for a broader ruling. They want the judge to force the corps to conduct much more detailed reviews before the agency approves new valley fills.

Late Friday, lawyers for the Ohio Valley Environmental Coalition and other groups asked Goodwin for a “summary judgment” against the corps. Such motions seek a ruling based only on legal arguments, when there is no dispute about the facts of a case.

The lawyers filed an 80-page legal brief, along with more than 300 pages of permit records, government correspondence and scientific studies, in U.S. District Court in Charleston.

In those papers, the attorneys cited 12 mining permits that would allow 34 valley fills, an impoundment and numerous stream relocations. Overall, they said, these permits would “permanently destroy or otherwise impact” more than 21 miles of Southern West Virginia streams. That’s enough valley fills to stretch from Charleston to Teays Valley on Interstate 64.

These projects, the lawyers said, cover watersheds that drain more than 8.5 square miles of land.

The mines themselves would disturb and deforest about 14 square miles, an area nearly the size of Kanawha State Forest. The largest is a 1,700-acre permit that would allow Fola Coal to mine through and relocate about 6 miles of tributaries of Leatherwood Creek in Clay County.

The motion filed Friday is part of a case started last October by lawyers Joe Lovett and John Barrett of the Appalachian Center for the Economy and the Environment and Jim Hecker of Trial Lawyers for Public Justice.

‘Unprecedented’ destruction

In that lawsuit, environmental groups argue that the corps has approved the burial of hundreds of miles of Appalachian streams under a streamlined permit process intended only for activities that cause “minimal” environmental damage.

“The evidence that the impacts of past and future surface coal mining and valley filling have had, and will have, cumulatively significant impacts is simply overwhelming,” the environmental group’s lawyers wrote in their Friday brief.

“Indeed, the scale of the destruction is unprecedented in this country,” they wrote. “If these activities taken together are insignificant, what would be significant?”

Lawyers for the corps and coal industry groups have sought to have the case dismissed on various procedural grounds.

They have not yet had a chance to respond to the summary-judgment motion.

In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal reserves. Leftover rock and dirt — the stuff that used to be the mountains — is shoved into nearby valleys, burying streams. The resulting waste piles are called valley fills.

Last year, federal regulators issued a report that concluded that 1,200 miles of Appalachian streams have been buried or otherwise “directly impacted” by valley fills between 1992 and 2002. That 41/2-year study found that past, present and future mining in Appalachia could destroy 1.4 million acres of forests, or 11.5 percent of the study area.

“It is difficult to imagine how any agency, no matter how delusional, could construe the complete destruction of more than one thousand miles of streams and hundreds of thousands of acres of forest to have minimal effect,” the environmental group lawyers wrote.

But, according to the lawsuit, that is exactly what the corps has done. For years, the lawsuit says, the corps has approved the stream fills associated with mining through what are called “general permits.”

‘Little, if any, delay or paperwork’

Under Section 404 of the federal Clean Water Act, the corps can issue two types of permits for filling rivers and streams: individual permits and general permits.

Individual permits cover specific fill proposals. Before issuing them, the corps must conduct a “case-by-case evaluation” of potential environmental effects.

General permits cover categories of activities on a statewide, regional or nationwide basis.

When it issues general permits, the corps spells out the general conditions that a particular category of activity should meet. Then, companies seek authorization for specific projects. If they promise to meet the general conditions, their projects are authorized with much less review than individual permits. General permits are supposed to allow filling that causes minimal damage to go forward with “little, if any, delay or paperwork,” according to corps regulations.

As an example, consider the case of Blue Branch. Green Valley Coal wants to bury Blue Branch beneath 20 million tons of preparation-plant waste, rock and dirt, according to DEP permit records.

Corps officials told the company it would need to get an individual Clean Water Act permit for such a large fill. Green Valley officials said that would take too long.

Bob McLusky, a Green Valley lawyer, said the company soon would run out of space in its current fills. Without a new permit, he said, the preparation plant and two underground mines would close.

So, Green Valley asked state and federal regulators to approve an initial portion of the Blue Branch fill. This proposal would allow the company to bury 431 feet of a Blue Branch tributary. McLusky said it would provide enough space for about eight months of preparation-plant operations.

The DEP approved the proposal, and the corps authorized it under Nationwide Permit 21, or NWP 21 — just eight days after Green Valley submitted its request to the agency.

During a hearing last week, Lovett told Goodwin that the corps illegally approved the smaller fill as an independent project, rather than as part of the larger Blue Branch proposal. Doing this, Lovett told the judge, allowed Green Valley to avoid the more detailed review required by an individual permit.

‘Greater protection

to the environment’

Under the law, the corps must make three important findings before it can issue a general permit that allows these speedy authorizations.

First, the agency must determine that the activities in the category are similar in nature. Next, the corps must show that the activities will cause only minimal adverse environmental effects when performed separately. Third, corps officials must conclude that the activities “will have only minimal cumulative adverse effects on the environment.”

In their lawsuit and their summary-judgment motion, environmental group lawyers allege that the corps has not — and really cannot — make these findings for mountaintop removal.

The lawsuit focuses on one corps general permit, called NWP 21, that the agency uses to authorize coal-mining fills.

Among the specific allegations, outlined in Friday’s court filing:

The corps illegally issued NWP 21 because it never determined that valley fills have minimal cumulative adverse effects on the environment.

Instead, the corps instructed its staff to determine whether individual fill proposals would have minimal impacts.

“An incremental, case-by-case analysis is inherently inconsistent with cumulative impact analysis,” the lawyers said.

The corps has not produced any “substantial evidence” that valley fills authorized under NWP 21 have had or will have minimal cumulative effects. The corps has also not defined what it considers “minimal,” except to say that the term means less than “significant.”

The corps has not, as required by the National Environmental Policy Act, produced a detailed study of the environmental effects of its approval of NWP 21.

In their motion, the environmental group lawyers ask Goodwin to throw out 12 specific NWP 21 approvals by the corps, including the Green Valley permit in Nicholas County.

They also ask the judge to block the corps from using NWP 21 to approve any new valley fills in the agency’s Huntington District, which includes the coalfields of Southern West Virginia and Eastern Kentucky.

If Goodwin issues such an order, coal operators would have to seek individual Clean Water Act permits from the corps for their fills. Environmental group lawyers told the judge that an order to restrict the use of NWP 21 and “leading to more individual permit reviews, will provide greater protection to the environment near surface coal mines.”


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