Reissued Highland permit continues to ignore the law

When the U.S. Army Corps of Engineers suspended a challenged permit for the Reylas Surface Mine in Logan County, many hoped this was a tacit acknowledgment that the permit did not comply with the Clean Water Act or the National Environmental Policy Act, as Appalachian Mountain Advocates attorneys alleged and the U.S. Environmental Protection Agency warned.

Unfortunately, when the Corps reissued the permit last month, it became clear that only cosmetic changes had been made. (Actually, the permit itself is unchanged; the Corps attempted, but failed, to address a couple of concerns raised about the permit in a supplemental decision document.) In addition, the Corps ignored new scientific research suggesting that mountaintop removal mining can impact public health. So, on Oct. 12, our attorneys filed a renew challenge to the permit on behalf of the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and the Sierra Club.

That motion spells out the many serious faults with the decision to issue the permit, which would allow more than two miles of stream to be buried ? tributaries of Dingess Run, which flows into the Guyandotte River. The mine is operated by Highland Mining Co., formerly a Massey subsidiary now owned by Alpha Resources.

Before issuing this permit, the Corps should have conducted an environmental impact statement?to determine how significant an effect the mine would have on water quality. NEPA requires an EIS if its action might have significant impact, and there should be little doubt that this permit would have very significant impact.

As the EPA said in its letter expressing concern about the permit, ?evidence to date shows that valley fills permitted for this mining operation will result in downstream impacts that will lead to impairment of the aquatic life use and would therefore result in a violation of West Virginia?s water quality standards.?

The Corps had reason to be concerned about more than the impact of the mine on water quality and aquatic life. In response to public comments expressing concern about health impacts, the Corps stated that??no human health effects are anticipated as a result of the proposed project. It has been determined the proposal would not result in any adverse impacts to the quality of the human environment.?

This ignores a growing body of scientific research, much of it conducted by Dr. Michael Hendryx,?Director of the West Virginia Rural Health Research Center at West Virginia University?s Robert C. Byrd Health Sciences Center. His extensive, peer-reviewed research has found that residents in mining areas ? especially mountaintop removal mining areas ? have higher incidents of cancer, heart disease, kidney disease, birth defects, premature mortality and other issues. (Watch an interview with Dr. Hendryx here.)

These studies were included in EPA’s guidance document on mountaintop removal mining, which means the Corps must have been aware of them. Its failure to act on that knowledge and study the potential human health impacts of this mine before issuing a permit violates the Corps’ duty under NEPA.

There are several other factors that call for an EIS, all of which the Corps ignored. The mining operations would almost certainly lead to an increase in conductivity ? a measure of certain dissolved ions in the water and an indicator of other pollution problems. The Corps acknowledges this, but denies that such an increase represents a significant environmental impact, even though Dingess Run already has conductivity levels well above what scientists say will cause serious water quality problems.

The Corps “plan” to mitigate damage from increased conductivity is a farce: “The applicant indicated that should adverse impacts from the proposal be identified as causing a violation of water quality standards under applicable state law, they would initiate a study of the problem and propose an appropriate solution, including the requirement for water quality mitigation activities within the affected watershed.”

That’s not a plan. That’s a promise to come up with a plan.

The Corps places great store in the ability of the mitigation plan Highland has proposed to counter other harmful impacts from the enormous valley fills. That confidence is misplaced. Highland’s proposal is to construct streams ? essentially drainage ditches ? to replace the natural stream beds buried under tons of rock.

There is no scientific evidence that such constructed streams come close to replacing the natural functions of real streams. According to the EPA, studies show?water quality in mitigation channels was ?severely degraded? and that the biological communities downstream from those channels were ?severely impaired.?

The Corps does admit the possibility that the mitigation will be inadequate, but as with the conductivity mitigation, its Plan B is nothing more than a vague promise to do something. If water quality is degraded by the mining, the mining company would “implement contingency and/or remedial measures, if necessary, which would include re-design of the mitigation plan, submittal of in-lieu fees, mitigation banking, and preservation of high quality stream habitat and buffer.”

The Corps blithely dismisses the potential that the mining will cause toxic selenium run-off, even though the? West Virginia Geologic and Economic Survey found selenium in samples taken from the seams Highland plans to mine. (Find out more about selenium here.) In case it is wrong about selenium, the Corps proposes implementing a special material handling plan ? an approach that has not been found effective anywhere else, and one that ignores the likelihood that selenium runoff would continue after the mining is complete.

It is unfortunate that nothing was done to improve the permit in the months since the Corps suspended it. In issuing this permit without first conducting an EIS, the Corps ignored science, the law and its obligation to the people of the United States.

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