Permit switch, secrecy ended mine challenge
Two weeks ago, environmental activists Cindy Rank and Vivian Stockman took a drive through the Logan County hills with Paul Vining, the president of Magnum Coal.
From the top of a ridge, Rank and Stockman looked down through the trees, mountain laurel and flame azalea.
The stream that runs through Fitzwater Hollow was already buried, they saw. Workers from Magnum subsidiary Apogee Coal Co. had dumped a six-foot-thick layer of rocks into the valley. The damage was done.
“This was the environment we didn’t want to see destroyed,” Rank said later.
Citizen groups had little choice. They dropped their court challenge to block Apogee’s mining permit. Late last week, they asked U.S. District Judge Joseph R. Goodwin to withdraw their request for a preliminary injunction.
More than 200 mine employees will keep their jobs. Apogee Coal agreed to hire a forestry expert and improve its reclamation plan.
But a major skirmish had already erupted in the long legal, public relations and policy battle over mountaintop removal.
Business and labor groups wrote a newspaper piece attacking the “all-out assault on the economic and fiscal well-being of our state.” Apogee bought full-page newspaper ads to publicize a petition from its employees.
Miners and local politicians staged a rally, where Gov. Joe Manchin fanned the flames. The permit appeal “was the tip of the iceberg,” the governor said. Environmentalists are on a crusade that threatens “the security of this nation,” he said.
“And that’s what we’re not going to stand by and let happen,” Manchin said to cheers from the crowd at Logan Middle School.
Behind the ruckus is another story. Environmental groups want to more strictly regulate mountaintop removal. Some of them want to stop the practice altogether.
Their legal efforts are being thwarted by a federal agency’s secrecy, and — in this case — by a coal company’s strategy of shifting its permit requests to evade judicial review, according to court testimony and government records.
The strategy generates last-minute court fights that pit jobs against the environment, and keep legal challenges to agency permit approvals from being heard, environmentalists say.
“There was collusion by the corps and the company to keep this permit from being challenged,” said Joe Lovett, a lawyer for the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the Natural Resources Defense Council.
The North Rum permit
Since 2003, Apogee Coal has produced more than 10.2 million tons of coal at its Guyan Surface Mine east of Logan. About 216 workers are employed by the 1,072-acre mine, according to state and federal records.
All mining permits eventually run out of coal, and Apogee sought a new permit to continue its operations.
The 800-acre North Rum permit would generate more than 9 million tons of coal over a six-year period, according to company disclosures.
North Rum would be located east of Logan, just south of the community of Kelly.
Miners would dump nearly 50 million cubic yards of waste rock and dirt — the stuff that used to be the mountain — into Fitzwater Hollow and an unnamed tributary of Brushy Fork, permit records show.
Two valley fills would bury more than two miles of streams. The largest, called Valley Fill 3, would stretch the length of more than 25 football fields.
For years, corps officials have approved most valley fills through a streamlined Clean Water Act permitting process. The agency issues a “nationwide permit” that spells out activities allowed and environmental protections required. Then, companies seek specific “authorizations” to mine under that nationwide permit. As long as they agree to comply with the general terms of that permit, their mines are approved.
Under this process, mine proposals receive far less agency review, and the public gets very little notice of mine applications or approvals.
In October 2003, environmental groups filed a federal court lawsuit to challenge the corps’ practice. They allege that the streamlined permit process was intended only for small projects with minimal impacts. In July 2004, Judge Goodwin agreed. The judge said the corps had never shown that valley fills cause only minimal impacts. He blocked the agency from approving new fills through the streamlined process.
Apogee and most other coal companies responded by seeking what the corps calls “individual permits.” These involved more detailed reviews, and a public notice and comment period.
Environmentalists complain about these permits, too. Even with individual permits, they say, the corps does little real analysis of potential impacts. In late March, U.S. District Judge Robert C. Chambers agreed. He revoked four individual permits the corps had issued to Massey Energy.
While that case was making its way through Chambers’ court, Apogee was waiting for the corps to process its individual permit application.
At the same time, the 4th U.S. Circuit Court of Appeals had overturned Goodwin’s decision. Environmental groups had gone back to court, asking Goodwin to rule on a long list of other problems with the corps’ nationwide permits. Lawyers briefed that case in June 2006, but Goodwin never ruled.
By early 2007, a decision from Chambers on the individual permit case was imminent. Apogee still didn’t have its individual permit approved.
On Feb. 5, Apogee’s engineering firm, Decota Consulting, quietly asked the corps to instead process its mine under the nationwide permit program. In less than a month, on March 2, the corps approved the request. Apogee had its permit.
Environmental groups who follow mountaintop removal didn’t find out about it for about six weeks. Even then, a DEP inspector told them on April 17 that little work had been done at the site.
Getting the permit out the door
Two days later, on April 19, environmental group lawyers went to court. They asked Goodwin for a temporary restraining order — emergency relief good for a limited time — so the judge could hear about flaws in the Apogee permit.
Lovett and another citizen group lawyer, Jim Hecker, noted that the North Rum operation would bury a longer section of streams than one of the corps’ individual permits that Chambers had blocked.
“The corps found that the cumulative effects are the loss of nearly half of the Upper Spruce Fork watershed and more than a third of its headwater streams,” Lovett and Hecker wrote in court documents. “The corps has no reasoned explanation or scientific analysis to support its conclusion that this amount of damage is minimal.”
The timing of Apogee’s switch to a nationwide permit suggests “that the corps and the mining companies are alternating the use of individual and general permits based solely on the expediency of whichever procedure gets the permit out the door more easily,” Lovett and Hecker also alleged.
Less than a week later, on April 25, Goodwin held a hearing at the federal courthouse in Charleston. Several dozen UMW members packed the courtroom.
Bob McLusky, a lawyer for Apogee, showed Goodwin photos of the rocks that now filled Fitzwater Hollow.
“There is no stream there,” McLusky said.
Goodwin was puzzled. The company’s mining plan didn’t call for the stream to be buried until the fifth of six phases, the judge noted.
“I’m just wondering how they got to phase five,” Goodwin said. “This permit has been in place for a month.”
Lovett responded, “There’s definitely been a rush here, maybe in fear of this litigation.”
Still, Goodwin declined to grant a temporary restraining order. He asked for more legal briefs, and scheduled another hearing to start May 31.
‘Had we known’
A few weeks after the April 25 hearing, Rank and Stockman visited the proposed North Rum mine site with Vining, Apogee engineer Mike Day and other company officials.
They confirmed what McLusky’s photos had shown.
“Had we known that this much was already done, we would not have challenged this permit,” Rank said.
Environmentalists were not the only ones who did not know details of the Apogee situation.
While Manchin spoke in favor of the miners, the governor’s staff had not yet reviewed the legal case in any detail. Manchin had no way to know if environmentalists’ complaints about the permit were right or wrong.
“We’re doing our homework now,” Manchin general counsel Carte Goodwin, who is also the judge’s nephew, said the day after the Logan rally.
Rank, longtime mining chairwoman for the West Virginia Highlands Conservancy, remembers when, in October 1999, then-U.S. District Judge Charles H. Haden II suspended a ruling to curb mountaintop removal.
Haden noted a “firestorm of reaction” predicting “unprecedented economic and social dislocation” because of his ruling. The judge questioned whether such claims were true. But he suspended his ruling anyway. Haden said that the “shrill atmosphere of discord must subside” so that an appeal of his decision could be properly considered.
Last week, Rank said the uproar fostered by politicians — and harsh talk by both sides in the mining debate — “takes it totally out of the courts.”
“You aren’t sitting down at a table and reasoning together anymore,” Rank said. “There is no civilized talk anymore. There really isn’t.”