For Immediate Release: July 16, 1998

For More Information Contact: TLPJ, 202-797-8600; Joe Lovett, 304-344-3144
Complaint
Exhibit A

TLPJ Sues West Virginia and U.S. Army Corp of Engineers to Stop Illegal Mountaintop Removal Mining

Lawsuit Charges That Mining Permits Violate Federal Laws

Trial Lawyers for Public Justice (TLPJ) filed suit today to stop coal mining companies in West Virginia from taking the tops off of the state's mountains and dumping them in the valleys and streams below. The suit charges that West Virginia's Department of Environmental Protection (DEP) and the U.S. Army Corps of Engineers are violating federal environmental laws by issuing permits to allow the extraordinarily destructive mountaintop removal mining currently taking place.

"The federal environmental laws clearly prohibit the coal companies from burying hundreds of miles of streams under billions of tons of waste," said TLPJ Environmental Enforcement Attorney Jim Hecker, co-counsel in the case. "The mountaintop removal mining taking place in West Virginia is in blatant violation of those laws."

The suit, Bragg v. Robertson, was filed in U.S. District Court in Charleston, West Virginia, on behalf of 10 West Virginia citizens and the West Virginia Highlands Conservancy. It alleges that the Director of the DEP and two officials of the Corps are violating the federal Clean Water Act and the Surface Mining Control and Reclamation Act of 1977 (or SMCRA) by issuing permits that allow illegal mountaintop removal mining in the state.

"Mountaintop mining was supposed to be carefully conducted to benefit local communities and encourage their economic development, but it is destroying them instead," said co-counsel Joseph Lovett of Mountain State Justice in Charleston. "The coal companies are simply taking off mountaintops and dumping them into West Virginia's streams, harming the communities and the environment in the process. The streams are the arteries of West Virginia's natural environment. Filling them up will inevitably cause damage to the entire system."

Mountaintop removal mining is an increasingly common coal company practice. Old-time strip mining, severely limited by SMCRA in 1977, stripped layers of coal from the sides of mountains. Mountaintop removal mining, in contrast, uses enormous machinery to cut off entire mountaintops – as much as 400 feet -- 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.

While federal law places stringent limits on the practice of mountaintop removal mining, the DEP has ignored these limits and routinely issued permits to mining companies to build these valley fills. As a result, hundreds of miles of West Virginia's streams are now filling up with waste. The mammoth mines also cause so much dust and noise, and consume so much land, that residents who live near them are being forced from their homes.

"These mountaintop removal mines are destroying streams at an astonishing rate," said Hecker. "If mountaintop removal mining is going to take place in West Virginia, it needs to comply with federal laws, which prevent this destruction from taking place."

The suit charges that DEP Director Michael Miano has violated his nondiscretionary duties under SMCRA, the federal strip mining law, by failing to ensure that mountaintop removal mining permits meet minimum federal requirements. For example, one requirement is that no mining activities can take place within a 100-foot "buffer zone" near streams, unless several restrictive environmental conditions are satisfied. DEP has routinely granted buffer zone variances to mountaintop mines, even though those mines violate the conditions for a variance. Another requirement is that mines 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 suit also charges that the U.S. Army Corps of Engineers cannot legally issue "dredge and fill" permits under the federal Clean Water Act for these valley fills. Under that law, the Corps can only issue those permits for fill material, not for waste disposal. The only purpose of valley fills is to dispose of mine waste. Waste disposal permits can only be issued by EPA or an authorized state, not by the Corps, and mining companies have never requested or received such permits for valley fills.

The suit seeks a declaratory judgment that the defendants have violated the federal laws, an injunction requiring them to come into compliance, and legal costs and fees. Patrick C. McGinley and Suzanne M. Weiss, both of Morgantown, are also serving as co-counsel in the case.