Written by: Dan Radmacher
May 9, 2011
After attorneys for the Center filed a complaint attempting to block a U.S. Army Corps of Engineers permit for Highland Mining Company’s Reylas Surface Mine in Logan County, W.Va., the Corps abruptly pulled the permit. In a brief statement, Corps officials explained, “The Corps has undertaken further review of the challenged permit decision and has determined that the permit decision merits further consideration.”
The permit was a mess: Without conducting an environmental impact study, the Corps was prepared to allow Highland to fill more than 2 miles of streams in the Reylas Fork, Bandmill Hollow and Dingess Run watersheds. The only mitigation offered for the destruction of these streams was the construction of artificial “groin ditches” to channel water through the area. The proposed post-mining land use creating flat space for FEMA trailers to house flood victims. While that would be a noble endeavor, it is not an approved post-mining land use. In addition, there are already plenty of flattened mountains in the area that could serve such a purpose if it becomes necessary. But what makes that proposal comically ludicrous is the fact that such flooding, should it occur, would likely be caused, or at least exacerbated, by the mining itself.
The U.S. Environmental Protection Agency, which has been working more closely with the Corps on mountaintop removal permits, sent a letter to the Corps on March 23, 2009, outlining the many problems with the permit: unsound mitigation, failure to adequately consider cumulative impacts from other nearby mining activity, habitat destruction and degradation of water quality.
The EPA said too little had been done to try to minimize these impacts.
The Corps appeared to completely ignore all of the EPA’s concerns when it issued the permit on March 4. On behalf of the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy, our attorneys went to court to block the permit. U.S. District Judge Robert C. Chambers issued a temporary restraining order on March 8 and scheduled a hearing for May to consider a preliminary injunction.
On April 19, the Corps pulled the permit. Chambers agreed to allow the permit to be remanded, canceling the scheduled hearing. But he included several interesting caveats in his order: He ordered the Corps to provide detailed status updates to the court on the permit every 30 days and to provide the court and the plaintiffs information about any contact it has with outside parties (i.e. Highland Mining) regarding the permit. He also stipulated that if the permit is reissued, as we suspect it will be, there will be an automatic 30-day stay of any activity related to the permit after the court is notified.
The decision by the Corps to pull the permit was a victory, a tacit admission that objections to the permit were valid. But the real test will be whether there are any meaningful changes to the permit when it is reissued. We will be watching.
You can read the brief we filed, along with the EPA letter, here.