Environmentalists are praising a new federal court ruling that could greatly reform the permitting of mountaintop removal coal mining.
On July 8, U.S. District Judge Joseph R. Goodwin ruled that the Army Corps of Engineers could no longer approve mining valley fills through a streamlined permit process meant only for activities that cause minor environmental damage.
“It’s a whole new ballgame,” said Jim Hecker, a Trial Lawyers for Public Justice attorney who represented the Ohio Valley Environmental Coalition in the case.
The coalition and two other citizen groups sought Goodwin’s ruling in a federal court lawsuit filed in October.
Another environmental lawyer, Joe Lovett of the Appalachian Center for the Economy and the Environment, said the corps would now be able to approve new mining permits only if it conducts more detailed environmental studies.
Those studies, Lovett said, will show that mining harms forests and streams and will force companies to reconfigure mining plans to reduce those impacts.
“The Army Corps of Engineers for too long ignored its obligation to confront the science that shows that the practice of mountaintop removal is devastating to the natural environment in West Virginia,” Lovett said.
Before they can open new surface mines, coal operators must obtain several permits from state and federal regulators. Among those is a permit from the corps for the actual filling of streams with mining waste.
In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal seams. Leftover rock and dirt — the stuff that used to be the mountains — is shoved into nearby valleys, burying streams.
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 4 1/2-year study found that past, present and future mining in the region could destroy 1.4 million acres of forest, or 11.5 percent of the study area.
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, and are issued 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.
Congress created the general permit program when it rewrote the Clean Water Act in 1977, in response to complaints that the corps’ individual permit process was too burdensome and time-consuming for activities that cause minor environmental impacts.
Environmentalists alleged in their lawsuit that the agency wrongly approved hundreds of miles of valley fills through a general permit called Nationwide Permit 21.
In his ruling, Goodwin agreed. The judge threw out Nationwide Permit 21, and said that the corps must approve valley fills only through more detailed individual permits.
Goodwin ordered the corps not to approve any new fills under Nationwide Permit 21.
As of last week, mine operators in West Virginia had 25 applications for such permits pending with the corps.
At 11 mining operations specifically cited in the suit, the judge ordered the corps to suspend permits for fills that had not started as of the July 8 date of his ruling.
Ducks in a row
In Washington, Bush administration officials have not made a decision about whether to appeal.
“All of that is under review,” said David Hewitt, a spokesman for the corps.
At the corps’ district office in Huntington, agency officials are preparing to begin processing valley fill proposals with the individual permits that Goodwin said mine operators must now obtain.
Since 1996, only two mining operations — both for large mountaintop removal jobs proposed by Arch Coal Inc. to expand its Samples Mine near Cabin Creek — obtained individual permits. One of those took more than three years to be processed. The other took about 1 1/2 years, according to corps officials.
The corps is reviewing 15 coal company requests for individual permits.
Mark Taylor, a project manager for the corps’ regulatory branch in Huntington, said it would probably not take the corps much longer to process individual permits than to review nationwide permits. In large part, Taylor said, processing time depends on how complete coal company permit applications are.
“If they have all of their ducks in a row, and give us all of the information we need up front, we can probably do an ‘IP’ faster than we’ve done some nationwide permits,” Taylor said last week.
“There is probably two or three months more processing time involved,” he said. “All things being the same, it would be at least 60 days and maybe six months longer.”
Disruptions to permitting
In legal briefs filed with Goodwin, coal industry lawyer Bob McLusky argued that the suit against the corps was “the third attempt by environmental organizations to halt coal mining in Central Appalachia.”
The late U.S. District Judge Charles H. Haden II had issued two major rulings that would have restricted mountaintop removal. Both were overturned by the 4th U.S. Circuit Court of Appeals in Richmond, Va.
“Although the first two attempts proved ultimately unsuccessful, the coal industry still struggles to recover from the substantial disruptions to the permitting process caused by the litigation,” McLusky wrote.
McLusky cited an April report by the U.S. Department of Energy that showed coal production in Southern West Virginia, Eastern Kentucky and Ohio remains more than 20 percent below production in 1997, the year before the first round of mountaintop removal litigation.
“The legacy of past lawsuits that had temporarily halted the issuance of permits needed to open new mines continued to constrain the amount of coal produced,” the DOE report said.
The DOE report also blamed several other factors for the production decline.
“Bankruptcies continued to plague Appalachia as another mid-sized coal company filed for Chapter 11 in early 2003, while several other coal companies were still working through their bankruptcy processes,” the DOE report said.
“Geological problems and underground mine fires added to the decline in coal production in some Appalachian states,” the report said. “Finally, several mines closed as they reached the end of their reserve base adding to the continuing reserve depletion that is affecting coal production in the East.
“Declining productivity and increasing labor costs also contributed to lower production levels in the region.”
In their briefs, industry lawyers cited testimony from two coal company officials who complained that obtaining individual permits would take too long and cost too much.
John McDaniel, an Arch Coal engineer, said in an affidavit that the lawsuit specifically targeted three of his company’s permits.
If Arch Coal needs to obtain new, individual permits, McDaniel said, it would take company officials four to six weeks just to prepare permit applications. Then, he said, it could take the corps six months to review the applications.
In a separate affidavit, Danny Cox of Massey Energy said that it typically takes three months to obtain a nationwide permit from the corps. Obtaining an individual permit would take nine to 12 months, Cox said.
McLusky concluded that a ruling in the environmental groups’ favor “will greatly lengthen the permit process for new mines and will disrupt planned and ongoing operations.”
After Goodwin’s ruling, West Virginia Coal Association President Bill Raney said his group wasn’t yet sure what the effect would be. Raney said the industry is “hopeful that it’s all going to work out.”
“There are a number of members that are going through the [individual permit] process,” Raney said. “Their opinion is that perhaps it’s a more efficient process than it had a reputation for.”
Before it can issue an individual Clean Water Act permit, the corps must do a preliminary study of the potential impacts of the mining proposal involved.
If the corps determines that the effects of the proposal will not be significant, then it can issue the permit. But if the agency determines that the effects are significant, then it must do a much more detailed Environmental Impact Statement, or EIS, that can take more than a year.
So far, the corps has only required such a study for one mining proposal — Arch Coal’s proposed Spruce Mine near Blair in Logan County, which was the subject of the initial mountaintop removal lawsuit in 1998. That study, begun after Haden blocked the corps’ first permit for the mine, has never been completed.
Corps officials say they don’t expect to order coal companies to perform an EIS for each mining permit application.
Ginger Mullins, chief of permitting for the corps’ Huntington branch, said the biggest difference between nationwide and individual permits is that individual permits involve a more open public review process.
In processing nationwide permit authorizations for mining proposals, the corps actually performed a brief site-specific review that was a sort of hybrid between general and individual permits.
But in doing so, Goodwin ruled, the agency evaded the public notice and comment that is required for individual permits.
Now, the corps will have to issue public notices for all mining permits, allow public comments and, in some cases, hold public hearings.
“This ruling gives people the opportunity to comment on these permits, which result in such devastation to their lives and communities,” said Vivian Stockman, project coordinator for the Ohio Valley Environmental Coalition.
By opening the process, Goodwin’s ruling will allow environmental groups to challenge the corps if the agency issues an individual permit without first demanding a detailed EIS.
“They’ve never done the scientific studies to support issuing these permits,” said Hecker, one of the environmental group lawyers. “The cumulative impacts of all of these fills are significant.”