From the headwaters of Cabin Creek to the town of Decota, coal operators have already stripped or are awaiting approval to strip nearly 5,000 acres of hills and valleys.The latest proposal is an application by Massey Energy to add 750 acres to its Republic Mine.U.S. Army Corps of Engineers officials have approved Massey’s plan. Corps officials said that the company could bury nearly two miles of streams with waste rock and dirt from the mining operation.But a federal judge has temporarily blocked the Republic Mine expansion.
As part of their latest lawsuit over mountaintop removal, environmental group lawyers have targeted the mine, along with two other new Massey permits.In doing so, the lawyers have filed reports from a collection of experts that offer new information about mountaintop removal’s impacts and problems with the corps’ permit reviews.Among the new findings and allegations contained in a wealth of court filings over the last two months:s Federal and state regulators use an incorrect computer model to estimate runoff from mountaintop removal sites, greatly underestimating mining’s potential to cause or contribute to flooding.s There is little scientific basis for arguments by the corps and the coal industry that reconstructed watercourses mitigate damage to natural streams that are buried by mining valley fills.s The small, headwaters streams that are most often buried by valley fills provide crucial ecological benefits that cannot be replaced by manmade streams built by coal companies.s In Southern West Virginia watersheds, the area being stripped by large-scale mining is far larger than the estimates touted by industry officials to downplay any possible damage. For example, mining permits cover nearly one-third of the area of the Cabin Creek watershed, where the Republic Mine is located, according to a computer analysis by Sara Watterson, a researcher with the group Earthjustice.“The mining and valley fills at these three mines collectively will destroy over 2,000 acres of land and smother over seven miles of streams,” environmental lawyers Joe Lovett and Jennifer Chavez said in court papers filed in early February.“Yet the corps has neglected to examine in a meaningful way the inevitable damage that will be caused by these mines, or to develop any realistic plan for mitigating that damage,” the two wrote in seeking a preliminary injunction against the corps. “The permits challenged here show that the corps is authorizing the permanent destruction of much of Southern West Virginia with little more than a wink and a nod at its duties under the law.”Lawyers for the corps have asked U.S. District Judge Robert C. Chambers not to consider the new information from the environmental group scientists. Instead, the agency wants the case to be decided solely on the permit records that were considered when the corps approved the mining operations.Also, corps lawyers told Chambers that the environmental groups are not simply asking for more detailed permit reviews.
“Clearly, no analysis, no matter how extensive, would satisfy these plaintiffs, whose stated mission is to ‘stop mountaintop removal coal mining,’ which Congress expressly authorized to meet the nation’s growing energy needs,” wrote corps lawyers Steven E. Rusak and Ruth Ann Storey.On Friday, Chambers ruled against the corps’ request to block environmental groups from providing their expert testimony.A hearing in courtIn mountaintop removal, coal companies use explosives to blast apart entire hilltops to uncover valuable, low-sulfur coal reserves.Huge shovels and trucks move in to haul away the coal. Leftover rock and dirt — the stuff that used to be the mountain — is shoved into nearby valleys, burying streams.Since 1999, two different federal judges in West Virginia have issued rulings to curb or more strictly regulate mountaintop removal. Both have been overruled by the 4th U.S. Circuit Court of Appeals in Richmond, Va.
In February, two West Virginia judges who sit on the 4th Circuit, Robert B. King and M. Blane Michael, issued a dissent that lamented mining damage to “the oldest mountain chain in the world” and “one of the nation’s richest, most diverse and most delicate ecosystems.”Now, two cases over mountaintop removal are again being heard in U.S. District Court in Southern West Virginia.In one case that is back before U.S. District Judge Joseph R. Goodwin, environmental groups want to block the corps from approving new mining operations through a streamlined permitting process.In the other, citizen groups want Chambers to force the corps to do more detailed studies before it approves new mines through the agency’s more traditional permit process.So far, the suit specifically targets the Massey Republic Mine, along with Massey’s Black Castle and Camp Branch mines, both in Logan County. Environmentalists and local citizens are especially upset about the Camp Branch permit, because they believe it would damage the site of the historic Battle of Blair Mountain.Chambers has scheduled a hearing to start Tuesday in federal court in Huntington on the environmental groups’ request for a broader injunction.If Chambers rules in their favor, the decision could affect the entire coal industry.Expert testimonyDuring this week’s hearing, Chambers is expected to hear testimony from hydrologists, ecologists and other experts. Much of the experts’ conclusions have already been provided in written reports filed with the court.In one report, University of Maryland hydrologist Keith N. Eshleman argues that the corps uses the wrong computer models to estimate potential runoff from mine sites.The method used by the corps has been “widely criticizes in the scientific literature,” Eshleman wrote. Further, there is inadequate runoff data available to use this method for specific Southern West Virginia watersheds, Eshleman wrote.“The individual and cumulative flood hazards associated with past, present and future surface mining activities in the region have effectively been neglected,” Eshleman wrote in his report.Margaret Palmer, a University of Maryland ecologist, submitted a report that harshly criticized the corps’ acceptance of coal company “mitigation” plans at mining operations.At many mining sites, companies propose to move streams or build manmade watercourses to replace creeks that are buried by valley fills.When it considers new mining permits, the corps conducts a preliminary review. If this review finds the potential for significant impacts, a more detailed study must be performed.Generally, the corps argues that there will never be significant impacts. Agency officials say that companies are mitigating the damage so that it would not be significant.In her report, Palmer argues that the corps’ method considers only whether the length and width of the original streams is replaced, and not the ecological functions those natural streams serve.Natural streams, especially smaller headwaters often buried by valley fills, help to regulate water temperature, process nutrients, purify water, protect against floods and support aquatic life.“Healthy streams are living, functional systems,” Palmer wrote in her report. “Even if the channel form can be reconstructed at the original site (which is not a given), restoration of form is not equivalent to restoration of function.”Bruce Wallace, a stream ecologist at the University of Georgia, came to similar conclusions in another report filed with the court.“The burial of headwater streams destroys habitat biodiversity, and ecological functions of these headwaters forever,” Wallace wrote. “There is no scientifically defensible mechanism with which to mitigate their long-term loss.”To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.