Corps' concerns about Dal-Tex permit not new
On June 24, the U.S. Army Corps of Engineers withdrew its blanket approval of Arch Coal Inc.'s proposal for the largest mountaintop removal mining permit in West Virginia history.
Company lawyers and executives seemed stunned.
Arch Coal CEO Steven Leer said, "The Corps has simply failed to keep its promise" to authorize the 3,100-acre Dal-Tex complex Spruce Mine expansion through a general, nationwide permit.
Roger Wolfe, lead lawyer for Arch subsidiary Hobet Mining, told a federal judge that the Corps' actions were "arbitrary, capricious, [and] an abuse of discretion."
Without the Corps permit, Arch can't open the mine. Four hundred union miners could lose their jobs.
Arch Coal warned
More than two months ago, however, the Corps warned Arch Coal that the agency wanted to revoke its approval of the Spruce Mine under a nationwide permit, according to internal government records and interviews.
In an April 29 memo that she placed in her files, Corps regulatory specialist Teresa D. Hughes wrote that the issue was discussed in a conference call that day with Kirk Stark, an official at the Corps' Washington office.
"He explained that Hobet Mining should be contacted tomorrow concerning the withdrawal of its application," Hughes wrote. "There would be no further litigation regarding the Federal Government, provided the Nationwide application is withdrawn."
Wolfe confirmed Friday that "some months ago, someone on our side got a call from someone, I think in the local Corps office, stating that they were thinking about withdrawing authorization."
The history of various permits for the Spruce Mine, along Pigeonroost Branch in Logan County, is complicated.
In November 1998, Hobet Mining asked the Corps to approve the project under a general, nationwide permit. Such permits are allowed only for activities that would cause minimal, cumulative adverse environmental impacts.
The Corps proposed to issue the permit. Agency officials drafted a letter approving it, but never sent the letter.
In February, the West Virginia Highlands Conservancy and a handful of coalfield citizens went to court to stop the Corps.
On March 3, Chief U.S. District Judge Charles Haden issued a preliminary injunction that barred the Corps from issuing its permit for the operation.
Among other things, Haden said Hobet Mining and the Corps had illegally "segmented" the Spruce Mine into smaller parts, so regulators wouldn't take a closer look, as they would if it were one large mine proposal.
"It seems apparent that the operations were split intentionally to allow the commencement of mining operations under a less critical agency review and to delay more detailed scrutiny until after significant work has begun," Haden said.
A full trial on the issue is scheduled to start July 18.
No nationwide permit
But on June 24, the Corps told Hobet Mining it would not approve the project under a nationwide permit. The company would have to seek an individual permit, which requires extensive environmental studies that could take two years.
In a letter to Hobet engineer James Johnston, the Corps said it had "reluctantly reached the conclusion, for a variety of reasons, that there is virtually no chance" that Haden would allow the mine under a nationwide permit.
In a June 22 letter, Corps lawyer Steven Rusak told Haden that the Corps was concerned about the accuracy of a letter from the U.S. Environmental Protection Agency in the Corps files on the permit. A week later, on June 28, during a pretrial conference, Rusak told Haden the permit was withdrawn, based on "a re-evaluation" of the Hobet proposal.
Stan Laskowski, regional director of environmental services for the federal EPA, said Friday that Rusak had recently asked him about a letter EPA wrote to the Corps in January.
In that letter, Laskowski told the Corps that the environmental impacts of the mine "have been minimized to the extent possible while maintaining a viable project."
"He [Rusak] was asking about the letter and what the intent was and what the thought process was in that letter," Laskowski said.
Originally, Hobet proposed to fill 7.8 miles of streams with 150 million cubic yards of rock and earth. Its final permit proposed to fill 4.1 miles of streams, a reduction of 47 percent.
In court papers, environmental groups argue that the EPA letter "is not a finding of minimal impacts. It is a finding that environmental impacts have been balanced with economic costs, and only those impacts that are not costly to eliminate have been minimized. "[The Clean Water Act] does not allow this type of cost-benefit analysis," the environmental groups said. "It provides that environmental effects must be minimal, not minimized considering costs, or minimized considering jobs."
Wolfe said he doesn't know if the Laskowski letter is the reason Rusak wanted to withdraw the Corps permit. "But we intend to find out," he said.
Cindy Rank, mining chairwoman of the West Virginia Highlands Conservancy, said Rusak and the Corps just did what they should have done all along.
"The length of streams, the depth of the cut and the extent of the impacts on hills and people and bugs and fish makes it important that it get the most thorough review," Rank said.
"We are just adamantly opposed to exempting the largest permit in the history of the state from that review."
To contact staff writer Ken Ward Jr., call 348-1702 or e-mail kw...@wvgazette.com.