This news story originally provided by The Charleston Gazette

Experts testify on damage from mining

Lawsuit targets Corps of Engineers’ mountaintop removal permit process

By Ken Ward Jr.
Staff writer

HUNTINGTON — Mountaintop removal mining is burying large parts of coalfield streams and increasing the threat of flash floods, experts told a federal judge Tuesday.

Coal operators and federal regulators misuse data and computer modeling, underestimating mining’s damage, the experts told U.S. District Judge Robert C. Chambers.

“Surface mining is probably the most dramatic example of land use modification that I can think of,” said Keith Eshleman, an associate professor at the University of Maryland’s Center for Environmental Science in Frostburg, Md.

Eshleman testified in the first day of trial in the latest legal effort by environmental groups to curb mountaintop removal.

The case targets four permits sought by Massey Energy subsidiaries. But Chambers’ ruling could have a much broader effect on the way large mining operations are reviewed and approved in the future.

In the case, the Ohio Valley Environmental Coalition and other groups allege that the federal Army Corps of Engineers has failed to thoroughly and properly study mining impacts before approving new permits.

Eshleman, for example, told Chambers that the corps used a “wholly inadequate” model that produced a “highly biased result” showing strip mines would reduce surface water runoff during storms.

“[The model] would produce a result that greatly underestimates the runoff from mining and reclamation sites,” Eshleman said in response to questions from Earthjustice lawyer Jennifer Chavez, who represents the citizen groups.

Another expert witness, Earthjustice researcher Douglas Pflugh, said the corps wrongly used government data from overlapping years to predict mining’s impact on the land over time.

Pflugh also testified that his own study of computer mine maps found that mountaintop removal is burying large portions of the watersheds where mining is permitted.

In the Laurel Creek watershed of the Coal River, for example, existing mining permits cover 27 percent of the watershed area, Pflugh testified. In that same watershed, valley fills have been permitted to bury 28 percent of the watershed’s stream length, he said.

Eshleman testified that the removal of trees and other vegetation as part of mountaintop removal plays a huge role in increasing the frequency and severity of floods.

During mine reclamation, Eshleman said, studies have found reforestation is “pathetically slow” because of damage to the forest’s soil system.

In his opening argument, environmental group lawyer Joe Lovett said the corps downplays or ignores outright this kind of damage.

“The Corps of Engineers is permitting the destruction of Southern West Virginia with little more than a wink and a nod,” Lovett told Chambers.

Cynthia Morris, a lawyer for the corps, said her agency believes mountaintop removal, and the reclamation that follows, will actually improve some parts of Southern West Virginia.

Morris said Lovett and other environmentalists promote a “myth” that mining is damaging forests and streams.

“These projects are not in pristine areas,” Morris said. “In some cases, they will actually improve the water quality that has already been substantially degraded.”

Morris also cautioned Chambers that federal judges are supposed to defer to expert agencies like the corps unless agency officials were unreasonable or arbitrary in their decisions.

Massey lawyer Bob McLusky agreed. “In the end, the court’s role here is not to determine who is right, but simply if the corps showed up ready to play,” he said.

McLusky said the lawsuit’s goal — requiring all large-scale mining permits to undergo an environmental impact statement review — would be a “death sentence” for mining in the state.

He cautioned that the Massey permits at issue employ about 600 people, and warned that those jobs, along with vital state tax revenues, could be lost if permits aren’t approved fast enough.

“If these permits and permits like them are denied or delayed, those [tax] payments will come down drastically in short order,” McLusky said. “And we hope that the court takes that into account when it considers the effects on the environment.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.