For Immediate Release: Wednesday, December 23, 1998
TLPJ and West Virginia Citizens Reach Landmark Settlement with Federal Agencies Imposing New Limits on Mountaintop Removal Mining
But Federal Agencies Unfairly Exempt One Mine From New Limits
Trial Lawyers for Public Justice and West Virginia citizens it represents have reached a landmark settlement with the federal government resolving a portion of their federal lawsuit challenging permits allowing coal mining companies in West Virginia to take the tops off of the state's mountains and dump them in the valleys and streams below. Under the agreement, announced today in Charleston, West Virginia, the federal government formally adopted new long-term and interim policies restructuring its process for considering applications to conduct mountaintop removal mining nationwide. The federal government will prepare a comprehensive environmental impact statement (EIS) of the entire mountaintop removal mining process, routine approval of such mining applications will stop, and all significant applications will be examined in detail for their potential environmental impacts.
At the same time, however, responding to economic and political pressure, the federal government has refused to apply the new policy to Hobet Mining Co.'s huge proposed Spruce Fork mine near Blair, West Virginia, where some plaintiffs in the lawsuit, Bragg v. Robertson, have lived for generations. The plaintiffs will fight this attempt to make Blair a sacrifice zone, because there is no principled basis for excluding the Hobet mine from the new policy.
"The federal government has agreed with us that business as usual poses unacceptable environmental risks and cannot continue," said Cindy Rank, mining chair for the West Virginia Highlands Conservancy. "Its new long-term and interim policiesadopted in response to our suit--accept two of the reforms that we demanded. We commend the federal government for agreeing to these long-overdue changes in its policy. While we are pleased with this victory, it is only the first step in a continuing effort to restrict this devastating form of mining."
The key provisions of the agreement are that:
1. Over the next two years, the U.S. Environmental Protection Agency, in coordination with other federal and state agencies, will prepare a comprehensive EIS analyzing its policies so that it minimizes the adverse environmental effects of mountaintop removal mining. There has never been a comprehensive analysis of these mining operations before, even though they have filled nearly 1000 miles of West Virginia streams with mining waste. A mining engineer, a biologist, and a third expert recommended by plaintiffs will help prepare the EIS.
2. In the interim, until the EIS is completed, the U.S. Army Corps of Engineers will discontinue its practice of routinely issuing Nationwide Permits for the filling of streams and valleys with mining waste. Instead, for mines that impact watersheds of 250 acres or more, or for mines that impact a smaller watershed but cause more than minimal impacts, the Corps will have to issue or deny individual permits based on much greater scrutiny of environmental impacts.
Despite the announcement of the new federal policy, the plaintiffs expect that the U.S. Environmental Protection Agency (EPA) will soon withdraw its objections to the water discharge permit for the Hobet Mining Co.'s proposed Spruce Fork mine. Plaintiffs also expect that EPA will do so only after Hobet eliminates two valley fills, reduces the size of others, and otherwise modifies the mining configuration. But Plaintiffs contend that the modified Hobet mine would, among other things, have significant new hydrological impacts, and would still have the same major impacts on the Blair community. These impacts must be studied in an EIS. In addition, the hydrological and other changes are a significant revision of the state-approved mining plan which requires a new round of public comment and review and a new state decision on the permit.
"The federal government's new long-term and interim policy is a reasonable one that should be applied uniformly to all pending permits," said co-counsel Jim Hecker, of Trial Lawyers for Public Justice in Washington, D.C. "But by exempting the Spruce Fork mine from this policy, the government has sacrificed the public interest and the citizens in Blair to the economic interests of a single, powerful mining company."
"The new policy is likely to help in the future, but it doesn't protect Pigeonroost Hollow, where my family has lived for over 200 years," said James Weekley, one of the plaintiffs. Pigeonroost Hollow is one of the valleys that would be filled with mining waste from the Spruce Fork mine.
"It is fundamentally unfair that the same people who helped bring about this settlement by fighting the Spruce Fork mine may now be unable to benefit from its provisions," said Patricia Bragg, another one of the plaintiffs in the suit. "We cannot accept this unfairness and discrimination, and will ask the district court to prevent this mine from operating until it complies fully with federal and state laws."
The settlement agreement only applies to the three claims that plaintiffs asserted against the federal defendants in the lawsuit. Plaintiffs have also asserted twelve other claims against the West Virginia Department of Environmental Protection (DEP). Those claims allege that DEP has violated federal strip mining laws by failing to ensure that mountaintop removal mining permits meet minimum federal requirements. DEP is not a party to the settlement, and plaintiffs will continue to prosecute vigorously those claims against the Spruce Fork permit and other permits.
"The state permitting process is a travesty," said Rank. "Minimum federal standards have been routinely misunderstood, ignored, and violated for years. The federal Office of Surface Mining, which is supposed to oversee and prevent these problems, has completely dropped the ball. It is time now for major reforms at DEP. The cozy relationship between DEP regulators and the coal industry must end. DEP's job is to protect the communities and the environment, not to serve powerful coal industry interests. The plaintiffs will continue with their case against DEP to vindicate the citizens' rights guaranteed more than 20 years ago by the Surface Mining Act."
The heart of the Surface Mining Act is the requirement that post-mining sites be restored to their approximate original contour (AOC). However, DEP routinely allows companies to ignore this requirement even though they have no AOC variance, and routinely grants AOC variances even though the required economic development is lacking. Another requirement is that no mining activities can take place within a 100-foot "buffer zone" near streams, unless DEP makes specific findings that several restrictive environmental conditions are satisfied. DEP has routinely granted buffer zone variances for mountaintop removal mines, such as the Spruce Fork mine, without making any of these findings. One DEP permitting official has granted 8000 permits without ever denying a request for a buffer zone variance.
The suit, Bragg v. Robertson, was filed in U.S. District Court in Charleston, West Virginia in July 1998 on behalf of 10 West Virginia citizens and the West Virginia Highlands Conservancy. Mountaintop removal mining is an increasingly common coal industry practice. It uses enormous machinery to cut off entire mountaintops 600 feet or more--and reach the valuable low-sulfur coal seams underneath. The huge volumes of rock and earth removed from these mountaintops are then dumped into nearby streams in waste piles called valley fills. The largest valley fills can each bury more than a mile of free-flowing streams under hundreds of feet of rock.
Plaintiffs in the case are being represented by Jim Hecker, Joseph Lovett of Mountain State Justice in Charleston, and Patrick C. McGinley and Suzanne M. Weise, both of Morgantown, West Virginia.