Once again, the Ohio Valley Environmental Coalition, Coal River Mountain Watch, West Virginia Highland Conservancy and the Sierra Club have challenged a Clean Water Act § 404 permit issued by the Corps of Engineers. Once again, U.S. District Court Judge Robert C. Chambers issued a temporary restraining order enjoining mining on the permit. Once again, the TRO was lifted upon agreement of the Plaintiffs and Hobet Mining that the streams sought to be protected have already been disturbed by mining.
On August 1, the Corps issued an individual § 404 permit to Hobet Mining for mining at its Mine 21 Complex in Boone and Lincoln Counties. The permit authorized Hobet to mine through approximately 22,200 feet of mostly ephemeral and intermittent drainages that channel water into Berry Branch, a perennial stream that flows into Mud River. Unlike most permits, no valley fills were authorized by permit. Instead, all of the stream channels were recreated in nearly their original locations. Overburden material in excess of that required to achieve the approximate original contour (AOC) on the permit is moved to an adjoining Hobet permit where it is placed in an existing valley fill. Approximately 1.8 million tons of coal will be mined from the permit. Hobet began mining immediately upon receiving the permit.
On August 8, OVEC and the three other groups represented by Joe Lovett filed a suit challenging the permit (3:07-cv-0973) in the federal district in Huntington. The suit names only the Corps as the Defendant. It alleges that the Corps failed to provide appropriate notice of its decision to issue the permit, that its assessment of the stream functions disrupted by mining were inadequately evaluated by the corps under the CWA and NEPA and that the mine will discharge selenium into the Mud River Reservoir. In a hearing conducted by telephone on August 12, Judge Robert Chambers issued a temporary restraining order and set a preliminary injunction hearing for August 20.
In the following days Hobet management met with representatives of the Plaintiffs and demonstrated that the two principal stream channels on the permit were filled with rock and check dams to control sedimentation during the course of mining. Notwithstanding their allegations that stream functions cannot be restored through mitigation, Hobet verified that a geo-morphologist had designed the new streams, and that the designer was acknowledged by the Plaintiffs own expert as having done excellent work. Finally, the unionized workforce began to mobilize once WARN notices were issued on August 14.
Following a breakfast meeting with Governor Manchin on Friday, August 15, the Plaintiffs met with Hobet and agreed to withdraw their motion for preliminary injunction. Hobet is not required to amend its plan of mining in any way, but has agreed to consult with a forestry expert who has previously advised on reclamation to achieve forestry post mining land uses. Hobet is also authorized to consult with another Plaintiff identified expert to review the adequacy of its material handling plan for selenium. Hobet will also not oppose the Plaintiffs’ request that DEP impose immediately effecting selenium effluent limits.
OVEC and Hobet signed a settlement on August 19. The Court dissolved the TRO in an order filed on August 21. The Corps issued a letter to Hobet authorizing mining activity on August 22. The lawsuit against the Corps challenging the inadequate notification practices and insufficient analysis remains unaffected.
This article was authored by Blair M. Gardner, Jackson Kelly PLLC. For more information on the author see here.