(From press release of Tuesday, August 21, 2001.
Contact Person: Jerry Hardt, Kentuckians For The Commonwealth, P.O. Box 697, Salyersville, KY 41465 phone - 606-349-4860)

Citing a need to defend their communities and uphold the law, a Kentucky citizens organization today filed suit asking that the U.S. Army Corps of Engineers be stopped from issuing permits allowing Kentucky’s streams to be buried with waste.

Filed in U.S. District Court in Charleston, the suit alleges that the Corps does not have any authority to issue permits allowing the disposal of coal overburden in the waters of the United States. The Corps routinely issues such permits to coal companies that bury streams with mine waste in what is known as "valley fills."

"Our overall concern is the failure to enforce even the most rudimentary parts of the Clean Water Act," said David Rouse of Kentuckians For The Commonwealth (KFTC), the plaintiff.

"This case is being filed on the heels of the recent announcement by the Corps and the Bush Administration that they will do nothing to rein in mountaintop removal mining and valley fills through limits on nationwide permits under the Clean Water Act," said co-counsel Jim Hecker, with Trial Lawyers for Public Justice in Washington, D.C. "In the meantime, the Corps is continuing to violate existing law. This issue is not going away. Coalfield residents in Appalachia will continue to seek to enforce the law and prevent the destruction of their land, streams, and quality of life."

Recently, the Corps granted Martin County Coal Company – the company responsible for the release of 250 million gallons of coal sludge last October - a "nationwide" permit, allowing the company to bury 33,000 feet of stream with waste from a 2,934-acre mining operation in Martin County. Under a nationwide permit the Corps assumes that the environmental impact will be minimal.

"It’s ludicrous to say that destroying six miles of stream is not a significant environmental impact, as the Corps has done for Martin County Coal," said KFTC member Patty Wallace of Louisa. "We can’t just sit back and allow our mountains to be flattened and turned to rubble, and our streams buried with mine waste."

The company's operation involves 27 different valley fills that encompass more than 300 acres. More than six miles of streams would be eliminated.

"The Corps needs to be held accountable," said co-counsel Joe Lovett of the Appalachian Center for the Economy and the Environment in Lewisburg, West Virginia. "This is an out-and-out violation of the Clean Water Act. The people of Appalachia will continue to fight assure that federal regulators comply with the law when regulating strip mining.

"Allowing this mine, which would destroy over six miles of Appalachian streams and nearly five square miles of the most diverse and productive temperate forests in the world, is one more example of the Corps’ illegal past practice of authorizing the wholesale destruction of these region’s irreplaceable resources without any scrutiny," Lovett continued. "The Corps has overseen the elimination of hundreds of square miles of Appalachian forests and hundreds of miles of the region’s streams."

The lawsuit further alleges that even if the Corps does have the authority to allow the discharge of coal waste into waterways, Martin County Coal’s operation represents a significant environmental impact and an "individual" permit rather than general permit should have been required.

An individual permit involves greater scrutiny. The applicant has to prove that the project is in the public interest and that there are no other ways to design the project that would lessen the impact on public waterways.

"These tests force the Corps to consider hydrological, archeological, cultural, economic and environmental factors," explained Rouse.

In January, the U.S. Environmental Protection Agency agreed that the mining operation "would have more than minimal adverse environmental impacts," and objected to the general permit issued by the Corps. However, EPA has not exercised its power to veto the permit. And the Bush administration has indicated its desire to let valley fills continue unchecked.

A third contention of the lawsuit is that the Corps’ failure to conduct an environmental impact study on the cumulative impact of valley fills before issuing a nationwide permit was a violation of the National Environmental Policy Act. Recent studies have found that those cumulative impacts are enormous:

• 5,858 valley fills have been permitted from 1985 through 1999 (with 4,421 of those in Kentucky);
• more than 500 miles of streams in Appalachian have been filled with mining waste, and
• if the entire existing and proposed valley fill inventory is built, more than 75,000 acres of watershed will be buried.

The lawsuit was filed in West Virginia because it is the Huntington district office of the Corps of Engineers that has jurisdiction in the Big Sandy River basin, where the Martin County Coal permit was issued. The Trial Lawyers for Public Justice (TLPJ) and West Virginia attorney Joe Lovett with the Appalachian Center for the Economy and the Environment will serve as co-counsel with KFTC’s Joe Childers in the case. Both have been involved in similar litigation against the Corps and the West Virginia Department of Environmental Protection.

Summary of KFTC lawsuit against the U.S. Army Corps of Engineers (Huntington district):

On Tuesday, August 21, 2001, Kentuckians For the Commonwealth filed a lawsuit in federal court in Charleston, West Virginia alleging that the U.S. Army Corps of Engineers (Huntington district office) violated several environmental laws when it issued a permit to allow Martin County Coal to bury 6.3 miles of streams with mining waste.

The lawsuit alleges that:

1) The Corps’ practice of issuing "Section 404" permits to allow mining companies to dispose of coal mining waste in streams violates the Clean Water Act. The Clean Water Act forbids discharge of any materials into U.S. waters unless those materials are "dredged or filled" materials. The Corps defines filled materials as materials placed in a body of water for the purpose of creating dry land. Waste is specifically listed as excluded from the definition of "fill." The clear purpose of Martin County Coal’s and other mining companies’ disposal of coal mining overburden into the rivers of Kentucky is to dispose of the waste. This is a violation of the Clean Water Act.

2) Even if the Corps does have authorization to allow waste into the rivers of Kentucky, it would have to require Martin County Coal to apply for an individual permit rather than the general nationwide permit issued to Martin County Coal. Under the law, the Corps must require an individual permit for any operation that will have more than a minimal environmental impact. Contrary to the opinions of the U.S. EPA, U.S. Fish and Wildlife Services, and Kentucky Fish and Wildlife Resources, the Corps found that the creation of 27 valley fills resulting in the elimination 33,000 linear feet of streams is a "minimal impact." KFTC believes that the practice of allowing miles of streams to be buried under mining waste at least deserves careful scrutiny.

3) The Corps violated NEPA (National Environmental Policy Act) by issuing a general nationwide 21 permit to Martin County Coal. NEPA requires that all major federal actions that significantly affect the quality of the human environment be supported by an Environmental Impact Statement (EIS). The EIS must detail any adverse environmental impact of the proposed project, alternatives to the project and describe the loss or commitment of resources involved. The Corps has never prepared an EIS concerning the environmental impact of surface coal mining operations and associated valley fills in Kentucky and West Virginia. The Corps has conducted basic studies for an environmental assessment in 1996 but has not included new information from the Fish & Wildlife Service, which decries the impact of valley fills.

Attorneys: Joe Childers, KFTC (Lexington, KY) 859-253-9824

Joe Lovett, ACEE (Lewisburg, WV) 304-342-0022

Jim Hecker, TLPJ (Washington D.C.) 202-797-8600