Coal Tattoo

Suit seeks to block new Massey permit

UPDATED:   U.S. District Judge Robert C. Chambers just issued an order temporarily blocking this permit, and scheduling a more detailed hearing for March 22.  See here for more.

UPDATED 2:  Here’s a link to Judge Chambers’ temporary restraining order.

Earlier today, Massey Energy issued a news release to tout the approval by the U.S. Army Corps of Engineers of a Clean Water Act permit for the company’s Reylas Surface Mine in Logan County, W.Va.:

The mine will directly employ 103 local residents for approximately 6 years and will produce approximately 1 million clean tons of coal per year. At this production level, approximately $5 million in taxes are expected to be generated for use in Logan County over the life of the operation.

Over the weekend, this permit approval by the Corps had received a little bit of press, based on a news release issued on Friday by the Corps’ office in Huntington.

But just moments ago, the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy filed a lawsuit in federal court seeking to block the new Massey permit.  I’ve posted a copy of the suit here. The citizen groups have also asked for a temporary restraining order, to block any activity on the site until a federal judge has time to review the issue more carefully.

The citizen group lawyers explain:

… The Corps’ issuance of the permit has created an immediate emergency with near certain risk of irreparable harm to Plaintiffs and the environment. Permittee Highland Mining Company is in the process of permanently burying more than two miles of Appalachian headwater streams. Such damage is irreversible and the damage is increasing by the hour.

As  some readers may recall, the U.S. Environmental Protection Agency had objected to the Corps’ plan to issue this permit, arguing in a March 2009 letter that:

EPA has expressed its significant concern regarding the impact to the human environment through a lack of avoidance and minimization efforts undertaken for this project, the cumulative impacts on the watershed, forest and habitat destruction and fragmentation within a globally significant and biologically diverse forest system, and the impairment of downstream water quality.

At the time, the operation proposed to bury 13,174 linear feet of stream channel beneath one valley fill and associated sediment control structures. The mine was proposed for Reylas Fork of Bandmill Hollow, a tributary of Dingess Run, which flows into the Guyandotte River.

Now, a problem here for EPA was that the Reylas Mine was proposing just one valley fill, so EPA officials could not try to push the company to use some sort of plan to phase-in, or sequence, various fills to better monitor and potentially minimize any impacts along the way.

Another interesting feature of this permit, as spelled out by Massey:

When mining is finished, Highland will use the reclaimed area to create a 235-acre housing site that will be available for local residents affected by emergencies, such as flooding. The site will have paved roads, public water and electric and sewage systems and will be ready for temporary housing in the event of an emergency. This planned post mining land use is part of the Logan County Land Use Master Plan.

Fast forward to last week … and you see that the Corps of Engineers announced the permit approval this way:

The Huntington District, U.S. Army Corps of Engineers has issued a Department of the Army Permit to Highland Mining Company to allow the discharge of fill material into 13,743 linear feet of waters of the United States in conjunction with the Reylas Surface Mine in Logan County, West Virginia.

Oddly, the Corps news release goes on to say:

As a result of the Corps’ permitting process, the applicant reduced impacts to 400 linear feet of perennial stream while eliminating the future extraction of approximately 2.5 million tons of coal. To mitigate for impacts to waters of the United States, the applicant is required to restore 1,154 linear feet of stream channel and create 28,960 linear feet of stream channel on-site.

Citizen groups are concerned that the Corps’ final permit may not have included the sorts of improvements EPA had recommended two years ago, and they also pointed out in the legal filing:

… Compared to the project noticed to the public in 2008, the permitted project impacts more than 500 additional linear feet of streams, including 454 additional feet of stream restoration and incorporates 6,320 fewer linear feet of on-site stream channel mitigation. The project also includes a stream monitoring plan not mentioned in the public notice.

I checked with Chuck Minsker of the Corps’ Huntington District public affairs office, and he told me that the original proposal actually called for impacting 14,143 linear feet of stream, and that the final one reduced those impacts by 400 feet, to the 13,743 feet listed in his agency’s press release.

But the public and the citizen groups can’t find out just yet what the Corps really approved — Minsker told me the permitting documents “are still being finalized,” despite the fact that the permit was already approved.

The lawsuit alleges the Corps wrongly did not perform an Environmental Impact Statement on the permit, did not give the public notice and a chance to comment on significant changes in the permit,  and that the permit, as issued, would allow the company to violate water quality standards and guidelines.

We haven’t seen anything in writing by the Obama EPA outlining why it allowed the Corps to go forward with this permit approval. Corps officials say EPA just called them and said to go ahead and issue it.

And at least one West Virginia political leader isn’t wasting any time in getting out the word that he’s pleased this permit was approved.  Rep. Nick J. Rahall issued a Saturday press release to say:

I am very pleased to see some progress being made and commend the Corps for working to find a balance that allows the mining to go forward while minimizing the environmental impact. I think southern West Virginia is already seeing benefit from the pending sale of Massey to Alpha Natural Resources, which is creating a better environment with respect to coal mining permits and the health and safety of mine workers.

Stay tuned …