On March 8, 2011, Highland received a permit from the United States Army Corps of Engineers to begin operating in West Virginia. The mine is expected to produce about one million tons of coal per year over six years. Highland first applied for the Corps permit in August 2007. It received a surface mining permit from the West Virginia Department of Environmental Protection in 2008.
The same day the Army Corps issued the permit, the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy filed a lawsuit in federal court seeking to block the permit. The citizen groups also asked for a temporary restraining order, to block any activity on the site until a federal judge has time to review the issue more carefully. According to the suit: "The Corps’ issuance of the permit has created an immediate emergency with near certain risk of irreparable harm to Plaintiffs and the environment. Permittee Highland Mining Company is in the process of permanently burying more than two miles of Appalachian headwater streams. Such damage is irreversible and the damage is increasing by the hour."
The U.S. Environmental Protection Agency had previously objected to the Corps’ plan to issue this permit, arguing in a March 2009 letter that: "EPA has expressed its significant concern regarding the impact to the human environment through a lack of avoidance and minimization efforts undertaken for this project, the cumulative impacts on the watershed, forest and habitat destruction and fragmentation within a globally significant and biologically diverse forest system, and the impairment of downstream water quality." At the time, the operation proposed to bury 13,174 linear feet of stream channel beneath one valley fill and associated sediment control structures. The mine was proposed for Reylas Fork of Bandmill Hollow, a tributary of Dingess Run, which flows into the Guyandotte River.
The details of the Corps approval are unknown, as the permitting documents “are still being finalized." Citizen groups are concerned that the Corps’ final permit may not have included the sorts of improvements EPA had recommended two years ago. The lawsuit also alleges the Corps wrongly did not perform an Environmental Impact Statement on the permit, did not give the public notice and a chance to comment on significant changes in the permit, and that the permit, as issued, would allow the company to violate water quality standards and guidelines.
On April 19, 2011, the U.S. Army Corps of Engineers suspended a permit for the mine. Lawyers for the Corps filed a motion with U.S. District Judge Robert C. Chambers, seeking a “voluntary remand” of the permit, to conduct a further review of it. The Corps said they could reinstate, modify or revoke the permit after that review. Environmental groups had filed suit to challenge this permit, and Chambers issued a temporary restraining order. A more detailed preliminary injunction had been scheduled to start on May 10, 2011.
In October 2011, Joe Lovett and Derek Teaney of Appalachian Mountain Advocates and Jim Hecker of Public Justice filed new legal challenges against the proposed mine permit, recounting a variety of concerns previously raised about the permit: Conductivity pollution, inadequate mitigation, cumulative impacts, public notice and selenium discharges.
To back up their claims, the lawyers attached three studies by Dr. Michael Hendryx concerning general health impacts, birth defects and cancer — all things that Dr. Hendryx found in higher rates among residents living in mountaintop removal mines. The citizen groups allege that the Corps of Engineers was aware of this research, but did not consider it when issuing the Reylas permit. They asked U.S. District Judge Robert C. Chambers to order the Corps to perform a new analysis, in which agency officials examine these health studies and what they mean for this particular permit.
Their legal papers explained: "The three studies described above present a seriously different picture of the impacts of mountaintop mining on human health than what the Corps found. The Corps found no human health impacts at all, while these studies found an increase in unhealthy days and birth defects and a potential doubling of cancer risk."
Alpha tries to keep out health studies from permit consideration
In January 2012, lawyers for Alpha Natural Resources asked U.S. District Judge Robert C. Chambers to keep testimony about West Virginia University studies linking mountaintop removal to birth defects and cancer among coalfield residents out of the Ohio Valley Environmental Coalition's legal challenge to the permit. The coalition and other groups are asking to add a claim about potential human health impacts to a suit that challenges a Clean Water Act permit the U.S. Army Corps of Engineers issued for the 235-acre mine.
Environmental group lawyers cited three studies co-authored by WVU researcher Michael Hendryx that found generally higher rates of health problems, and specifically higher rates of cancer and birth defects, among residents living near mountaintop removal operations in Appalachia. The three papers are among a series of 20 peer-reviewed studies Hendryx and various co-authors have published examining possible links between mountaintop removal and various illnesses.
The Coalition asked Chambers to order the corps to conduct a new permit analysis that includes an examination of the WVU studies and what they might mean for communities near the Reylas mine site.
Alpha lawyer Bob McLusky argues in a court filing that the environmental groups waited too long to raise the studies, that the health impacts cited have nothing to do with the water pollution permit at issue in the case, and that general health studies shouldn't be used in a case over a specific mining permit.
- MSHA ID:
- Operator: Highland Mining
- Controller: Massey Energy
- County: Logan
- State: WV
- Production (short tons): 1 million tons annually (projected)
- Coal Type:
- Mining Method: Surface
- Mine Status: Active
- Average No. of Employees: 103 (projected)
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- Matt Whittaker, "Massey Energy Unit Gets Permit To Open New W.Va. Coal Mine" Dow Jones, March 8, 2011.
- Ken Ward Jr., "Suit seeks to block new Massey permit" Charleston Gazette, March 8, 2011.
- Ken Ward Jr., "Corps pulls plug on Massey permit prior to hearing" Coal Tattoo, April 20, 2011.
- Ken Ward Jr., "Breaking news: Groups challenge Alpha permit, raising questions about mining’s health impacts" Coal Tattoo, October 13, 2011.
- Ken Ward Jr., "Alpha fights to block health studies from permit lawsuit" Charleston Gazette, January 9, 2012.