Latest mining suit adds 'silt snake' angle

Latest mining suit adds 'silt snake' angle

Charleston Gazette, West Virginia

November 6, 2005

In their latest federal court lawsuit, environmental group lawyers have launched a little-noticed new legal attack on mountaintop removal coal mining.

The suit, against the Army Corps of Engineers, alleges that federal officials do not properly evaluate the effects of valley fills on streams.

But in a new twist, environmental group lawyers are now also alleging that in-stream sediment ponds just downstream from fills are illegal.

They also argue that the discharge of pollution from valley fills into the stream segments between the fills and the sediment ponds - regulators call them "silt snakes" - is against the federal Clean Water Act.

"The valley fills will impact stream segments that will be used to transport polluted water from the toes of the valley fills to the outfalls of the sediment ponds constructed within the affected streams," the amended lawsuit says. "The polluted and untreated water discharged from the toes of the fills does not comply with the effluent limitations and standards for total suspended solids, settle-able solids and other pollutants."

In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal reserves.

Leftover dirt and rock is dumped into nearby valleys, burying streams.

Generally, coal operators allow the water that discharges from the toe of a valley fill to flow through a stream segment to a sediment pond that is built inside a stream bed farther downstream. In the sediment pond, solids settle to the bottom and, theoretically, clear water flows out into the stream.

State and federal regulators judge whether the mining operation complies with its water pollution limits by testing the water that flows out of the sediment ponds.

In the new lawsuit, environmental groups allege that the stream segments between the fills and the ponds are "waters of the United States" subject to federal pollution limits.

"Compliance with water quality standards is therefore required not only at the outlet of the sediment pond, but also upstream starting at the toe of the valley fills," the lawsuit says.

The allegations were added last week to a federal court lawsuit pending before U.S. District Judge Robert C. Chambers in Huntington.

Originally, the suit targeted the corps' approval of a permit for Massey Energy subsidiary Aracoma Coal Co. to mine 12.5 million tons of coal from the hills around historic Blair Mountain.

Last week, lawyers for three West Virginia environmental groups amended their suit to also challenge a permit for another Massey subsidiary, Elk Run Coal Co., and its Black Castle Mine in Boone County.

The Aracoma project would bury nearly 3 miles of streams with waste rock and dirt. The Elk Run operation would bury about 2.5 miles of streams.

The corps has declined to comment on the pending lawsuit. Massey lawyers have not yet sought to intervene in the case to help defend their permits.

Already, environmental groups are waiting on an appeals court decision in a challenge of a ruling by U.S. District Judge Joseph R. Goodwin to block the corps from reviewing valley fill proposals through a streamlined "general permit" process.

In the new case, the groups argue that the corps was wrong to approve the Aracoma and Elk Run permits through more detailed "individual permit" reviews because those reviews did not include studies called Environmental Impact Statements.

The groups that filed the suit are the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition and Coal River Mountain Watch. They are represented by Joe Lovett of the Appalachian Center for the Economy and the Environment and by Stephen Roady and Jennifer Chavez of the Washington-based group Earthjustice.

"The corps failed to follow the law when they issued both of these permits," said Janet Keating, co-director of the Ohio Valley Environmental Coalition.

"The corps has repeatedly ignored evidence showing that mountaintop removal mining destroys the environment, harms the economy and degrades the lives of West Virginians," Keating said. "Our lawsuits send them a message to start complying with the law and stop blowing up our mountains."