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Lawsuit seeks to curb mountaintop removal

A coalition of environmentalists and coalfield residents filed a federal court lawsuit on Thursday to try to curb mountaintop removal coal mining.

The suit states that the state Division of Environmental Protection "has routinely approved surface coal mining permits which decapitate the state's mountains and dump the resulting waste in valleys, burying hundreds of miles of headwaters of West Virginia's streams."

These permits, the suit alleges, have been illegally issued in violation of the 1977 Surface Mining Control and Reclamation Act and the federal Clean Water Act.

"The environmental and social impacts of mountaintop removal mining extend well beyond the streams that are actually filled," the 48-page complaint alleges. "Significant portions of the state's forests and mountains are destroyed.

"The communities below these massive operations are often devastated," it continues.

"The residents are effectively forced from their homes by blasting which often cracks the walls and foundations of their houses, dust, noise, flyrock, the threat of flooding, fear that the valley fills above their homes are unstable, and the degradation of stream and well water," it says.

The suit was filed Thursday afternoon in U.S. District Court in Charleston.

Named as defendants are Michael Miano, director of the state DEP, and Col. Dana Robertson, Lt. Gen. Joe N. Ballard and Michael D. Gheen of the U.S. Army Corps of Engineers.

The suit was filed on behalf of the West Virginia Highlands Conservancy and 10 coalfield residents. The residents are Patricia Bragg, James W. Weekley, Sibby R. Weekley, Harry M. Hatfield, Carlos Gore, Linda Gore, Cheryl Price, Jerry Methena, Tommy Moore, and Victoria Moore.

The plaintiffs are represented by Charleston lawyer Joseph M. Lovett of the non-profit firm Mountain State Justice, Morgantown lawyer Suzanne M. Weise, West Virginia University law professor Patrick C. McGinley and James M. Hecker of the Washington group Trial Lawyers for Public Justice.

The suit had been expected for months. The plaintiffs filed two formal notices of intent to sue with DEP in April and June, but said in their complaint on Thursday that the agency had not taken any action to fix alleged regulatory problems.

Among the specific allegations in the suit:

Strip mine waste piles called valley fills are illegal, because the Corps is not allowed to issue "dredge and fill" permits under the Clean Water Act for dumping waste materials in streams.

Under federal law, the Corps can only issue those permits for fill materials, which are defined as "material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody.

If the Corps can't permit valley fills, the fills must comply with state water quality standards. One of those standards prohibits activities which degrade existing uses of streams. DEP has routinely permitted valley fills, even though they bury streams and destroy their existing uses, the lawsuit alleges.

Valley fills violate federal rules that prohibit strip mining within 100 feet of a stream. This "buffer zone" requirement may only be waived after regulators make a series of specific findings that allowing the mining will not violate state or federal water pollution limits.

Since 1990, the lawsuit alleges, the DEP "has granted buffer zone variances for dozens of surface coal mining operations without making the required findings."

Mountaintop removal mines are being illegally authorized by permits that neither require mine operators to reclaim mined land to its approximate original contour, nor include a post-mining land use development plan required by federal law.

Bill Raney, president of the West Virginia Coal Association, said, "It will be interesting to see the evidence they present. I don't think there's much evidence to support those allegations."

Among other things, the lawsuit cites a March study by Dan Ramsey, a U.S. Fish and Wildlife Service biologist, which found that "469.3 miles of streams have been lost in just five West Virginia watersheds as a result of surface mining valley fills."

The suit also outlined a study by the plaintiff lawyers of 48 large mountaintop removal jobs permitted since 1991. It said those mines were not properly permitted.

Those mines, each covering more than 225 acres, proposed to strip a total of 40,000 acres, or about 63 square miles. According to the lawsuit, the permits proposed more than 200 valley fills that would contain 2 billion cubic yards, or about 3.5 billion tons of rock and dirt.

Russ Hunter, a lawyer for the state DEP Office of Mining and Reclamation, said he had hoped the agency would be able to resolve citizen complaints about mountaintop removal without going to court.

"I liken the regulatory environment to a moving picture. There are times when things need to be adjusted," Hunter said.

"I think that there are corrections that occur to all regulatory processes based on the technological development of the regulated activity," he said.

"As far as anything being patently amiss, we think that the agency can defend its actions," he said. "But if there are improvements to be made, we're willing to do that."

 

To contact staff writer Ken Ward Jr., call 348-1702.

 


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