Winds of Change Newsletter, February 2007 See sidebar for table of contents
Gutless Wonders: Corps Issues MTR Permit in Secret
On Jan. 27, an OVEC supporter e-mailed a note of rage to a staffer about a hollow being gutted, near whats left of the community of Blair. The staffer, having recently traveled the area with Cindy Rank of the WV Highlands Conservancy, sent the note on to her. Cindy wondered if this might be the beginning of operations for the Spruce No. 1 / Pigeonroost permit. She included Margaret Janes in the reply e-mail.
Margaret regularly keeps after the Army Corps of Engineers, trying to drag permit information out of the agency, but she had not received word that a permit (under section 404 of the Clean Water Act) had been granted. No word at all, despite her weekly Freedom of Information Act requests for the last two months, and a court-sanctioned agreement for the Corps to notify plaintiffs at the same time as permittees when it issues 404 permits.
Margaret poked around the DEPs website to see if there was any information, and found that the mine received a notice of violation of surface mining laws on Jan. 24. Armed with that information, Margaret started calling the Corps and eventually confirmed that the permit had been issued in secret on January 22. The Corps promised to forward the permitting documents immediately, but even delayed that until mid-afternoon. Our lawyers then moved to request a temporary restraining order from the court.
We found out that, in preparation for mining, Arch Coal had cleared about 90 acres of land during the time we didnt know the permit had been granted. The violation said Arch failed to construct and certify sediment control "ponds" before beginning mining activities. One "pond" required by the permit was constructed, but not certified and another was not constructed at all. Gee, 90 acres cleared, one "pond" built and one notice of violation, all in just two days of receiving the permit.
If our supporter hadnt e-mailed, how much more would already be destroyed and how much longer would the Corps have dodged its court-sanctioned agreement?
This news story further explains the situation:
Corps Gives Final OK to Record-Setting Strip Mine in Logan County
by Ken Ward, Jr., Charleston Gazette, Jan. 30, 2007
"Federal regulators have given final approval to the largest mountaintop removal-mining permit in West Virginia history.
Last week, the U.S. Army Corps of Engineers issued a Clean Water Act permit for Arch Coal Inc.s Spruce No. 1 Mine in Logan County.
The move comes nearly eight years after a federal judge blocked the original permit, and as environmental groups and industry officials are waiting for two other major court rulings on mountaintop removal.
Corps officials approved a "dredge-and-fill" permit that allows the Spruce Mine to bury nearly seven miles of streams in the Pigeonroost Hollow area of Logan County, near Blair.
Col. Dana R. Hurst, the corps district engineer in Huntington, approved the permit in a 41-page record of decision signed Jan. 22.
Arch Coal has scaled back the operation, from the 3,113 acres originally approved to 2,278 acres
Joe Lovett, a lawyer for the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy, said that those groups are "considering all of their options and may challenge it in court."
Just a week before the permit was approved, the wife of one of the Spruce Mines most vocal opponents died.
Sible Rose Wheatley Weekley, 62, of Blair, died on Jan. 15. She and her husband, James Weekley, lived along Pigeonroost Branch and filed the original lawsuit that helped launch the fight against mountaintop removal
In 1998, (the permit) was at the heart of the first in a series of federal court lawsuits that sought to curb mountaintop removal mining.
In March 1999, then-Chief U.S. District Judge Charles H. Haden II issued a preliminary injunction blocking the corps permit for the mine Haden issued two other, broader rulings to more strictly regulate mountaintop removal, but both were overturned by the Fourth U.S. Circuit Court of Appeals in Richmond, Va.
Hadens ruling to block the Spruce Mine also led to a series of protests by the United Mine Workers, whose members hoped to continue their jobs at Dal-Tex onto the new permit.
Now, Arch Coal has transferred the mine to its Mingo Logan Coal Co. subsidiary and plans to operate with non-union workers, said UMW spokesman Phil Smith.
Both sides of the mountaintop removal controversy are waiting for a ruling from U.S. District Judge Robert C. Chambers in Huntington in a case that seeks to force all mines to have an EIS (Environmental Impact Statement) before they are approved.
Also, U.S. District Judge Joseph R. Goodwin is considering whether to reopen a separate case over the way the corps approves most mines through a streamlined permit process."
On Jan. 29, on behalf of OVEC, Highlands Conservancy and Coal River Mountain Watch, Joe Lovett of the Appalachian Center for the Economy and the Environment filed court papers asking Judge Chambers to issue a temporary restraining order to block Arch from
Lovett also asked Chambers to add the Spruce No. 1 Mine permit to the case. Lovetts filing noted that the Corps Environmental Impact Statement on the Spruce Mine is inadequate.
The Corps contends that the mine, "would only contribute minimally to cumulative impacts on surface water quality."
Lovetts filing said, "This conclusions has no scientific basis. On the contrary, scientific studies demonstrate that valley fills significantly degrade downstream water quality"
Judge Chambers heard from lawyers on both sides on Feb. 1. Parties agreed that, for now, there will be no more disturbances at the Spruce permit area.