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This news article originally provided by
The
Charleston Gazette
Two weeks ago, environmental activists Cindy Rank and Vivian
Stockman took a drive through the Logan County hills with Paul
Vining, the president of Magnum Coal.
From the top of a ridge, Rank and Stockman looked down through
the trees, mountain laurel and flame azalea.
The stream that runs through Fitzwater Hollow was already buried,
they saw. Workers from Magnum subsidiary Apogee Coal Co. had dumped
a six-foot-thick layer of rocks into the valley. The damage was
done.
“This was the environment we didn’t want to see destroyed,” Rank
said later.
Citizen groups had little choice. They dropped their court
challenge to block Apogee’s mining permit. Late last week, they
asked U.S. District Judge Joseph R. Goodwin to withdraw their
request for a preliminary injunction.
More than 200 mine employees will keep their jobs. Apogee Coal
agreed to hire a forestry expert and improve its reclamation plan.
But a major skirmish had already erupted in the long legal,
public relations and policy battle over mountaintop removal.
Business and labor groups wrote a newspaper piece attacking the
“all-out assault on the economic and fiscal well-being of our
state.” Apogee bought full-page newspaper ads to publicize a
petition from its employees.
Miners and local politicians staged a rally, where Gov. Joe
Manchin fanned the flames. The permit appeal “was the tip of the
iceberg,” the governor said. Environmentalists are on a crusade that
threatens “the security of this nation,” he said.
“And that’s what we’re not going to stand by and let happen,”
Manchin said to cheers from the crowd at Logan Middle School.
Behind the ruckus is another story. Environmental groups want to
more strictly regulate mountaintop removal. Some of them want to
stop the practice altogether.
Their legal efforts are being thwarted by a federal agency’s
secrecy, and — in this case — by a coal company’s strategy of
shifting its permit requests to evade judicial review, according to
court testimony and government records.
The strategy generates last-minute court fights that pit jobs
against the environment, and keep legal challenges to agency permit
approvals from being heard, environmentalists say.
“There was collusion by the corps and the company to keep this
permit from being challenged,” said Joe Lovett, a lawyer for the
Ohio Valley Environmental Coalition, Coal River Mountain Watch and
the Natural Resources Defense Council.
The North Rum permit
Since 2003, Apogee Coal has produced more than 10.2 million tons
of coal at its Guyan Surface Mine east of Logan. About 216 workers
are employed by the 1,072-acre mine, according to state and federal
records.
All mining permits eventually run out of coal, and Apogee sought
a new permit to continue its operations.
The 800-acre North Rum permit would generate more than 9 million
tons of coal over a six-year period, according to company
disclosures.
North Rum would be located east of Logan, just south of the
community of Kelly.
Miners would dump nearly 50 million cubic yards of waste rock and
dirt — the stuff that used to be the mountain — into Fitzwater
Hollow and an unnamed tributary of Brushy Fork, permit records show.
Two valley fills would bury more than two miles of streams. The
largest, called Valley Fill 3, would stretch the length of more than
25 football fields.
For years, corps officials have approved most valley fills
through a streamlined Clean Water Act permitting process. The agency
issues a “nationwide permit” that spells out activities allowed and
environmental protections required. Then, companies seek specific
“authorizations” to mine under that nationwide permit. As long as
they agree to comply with the general terms of that permit, their
mines are approved.
Under this process, mine proposals receive far less agency
review, and the public gets very little notice of mine applications
or approvals.
In October 2003, environmental groups filed a federal court
lawsuit to challenge the corps’ practice. They allege that the
streamlined permit process was intended only for small projects with
minimal impacts. In July 2004, Judge Goodwin agreed. The judge said
the corps had never shown that valley fills cause only minimal
impacts. He blocked the agency from approving new fills through the
streamlined process.
Apogee and most other coal companies responded by seeking what
the corps calls “individual permits.” These involved more detailed
reviews, and a public notice and comment period.
Environmentalists complain about these permits, too. Even with
individual permits, they say, the corps does little real analysis of
potential impacts. In late March, U.S. District Judge Robert C.
Chambers agreed. He revoked four individual permits the corps had
issued to Massey Energy.
While that case was making its way through Chambers’ court,
Apogee was waiting for the corps to process its individual permit
application.
At the same time, the 4th U.S. Circuit Court of Appeals had
overturned Goodwin’s decision. Environmental groups had gone back to
court, asking Goodwin to rule on a long list of other problems with
the corps’ nationwide permits. Lawyers briefed that case in June
2006, but Goodwin never ruled.
By early 2007, a decision from Chambers on the individual permit
case was imminent. Apogee still didn’t have its individual permit
approved.
On Feb. 5, Apogee’s engineering firm, Decota Consulting, quietly
asked the corps to instead process its mine under the nationwide
permit program. In less than a month, on March 2, the corps approved
the request. Apogee had its permit.
Environmental groups who follow mountaintop removal didn’t find
out about it for about six weeks. Even then, a DEP inspector told
them on April 17 that little work had been done at the site.
Getting the permit out the door
Two days later, on April 19, environmental group lawyers went to
court. They asked Goodwin for a temporary restraining order —
emergency relief good for a limited time — so the judge could hear
about flaws in the Apogee permit.
Lovett and another citizen group lawyer, Jim Hecker, noted that
the North Rum operation would bury a longer section of streams than
one of the corps’ individual permits that Chambers had blocked.
“The corps found that the cumulative effects are the loss of
nearly half of the Upper Spruce Fork watershed and more than a third
of its headwater streams,” Lovett and Hecker wrote in court
documents. “The corps has no reasoned explanation or scientific
analysis to support its conclusion that this amount of damage is
minimal.”
The timing of Apogee’s switch to a nationwide permit suggests
“that the corps and the mining companies are alternating the use of
individual and general permits based solely on the expediency of
whichever procedure gets the permit out the door more easily,”
Lovett and Hecker also alleged.
Less than a week later, on April 25, Goodwin held a hearing at
the federal courthouse in Charleston. Several dozen UMW members
packed the courtroom.
Bob McLusky, a lawyer for Apogee, showed Goodwin photos of the
rocks that now filled Fitzwater Hollow.
“There is no stream there,” McLusky said.
Goodwin was puzzled. The company’s mining plan didn’t call for
the stream to be buried until the fifth of six phases, the judge
noted.
“I’m just wondering how they got to phase five,” Goodwin said.
“This permit has been in place for a month.”
Lovett responded, “There’s definitely been a rush here, maybe in
fear of this litigation.”
Still, Goodwin declined to grant a temporary restraining order.
He asked for more legal briefs, and scheduled another hearing to
start May 31.
‘Had we known’
A few weeks after the April 25 hearing, Rank and Stockman visited
the proposed North Rum mine site with Vining, Apogee engineer Mike
Day and other company officials.
They confirmed what McLusky’s photos had shown.
“Had we known that this much was already done, we would not have
challenged this permit,” Rank said.
Environmentalists were not the only ones who did not know details
of the Apogee situation.
While Manchin spoke in favor of the miners, the governor’s staff
had not yet reviewed the legal case in any detail. Manchin had no
way to know if environmentalists’ complaints about the permit were
right or wrong.
“We’re doing our homework now,” Manchin general counsel Carte
Goodwin, who is also the judge’s nephew, said the day after the
Logan rally.
Rank, longtime mining chairwoman for the West Virginia Highlands
Conservancy, remembers when, in October 1999, then-U.S. District
Judge Charles H. Haden II suspended a ruling to curb mountaintop
removal.
Haden noted a “firestorm of reaction” predicting “unprecedented
economic and social dislocation” because of his ruling. The judge
questioned whether such claims were true. But he suspended his
ruling anyway. Haden said that the “shrill atmosphere of discord
must subside” so that an appeal of his decision could be properly
considered.
Last week, Rank said the uproar fostered by politicians — and
harsh talk by both sides in the mining debate — “takes it totally
out of the courts.”
“You aren’t sitting down at a table and reasoning together
anymore,” Rank said. “There is no civilized talk anymore. There
really isn’t.”
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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