On October 17, 2012, the Sierra Club and other groups sued the U.S. Army Corps of Engineers in both the Southern District of West Virginia and the Western District of Kentucky challenging the issuance of Clean Water Act §404 “fill” permits issued for mines by the Huntington and Louisville Districts of the Corps of Engineers. The complaint in West Virginia challenges a fill permit issued to Raven Crest Contracting, LLC, and the complaint in Kentucky challenges a permit issued to Leeco, Inc.
Both complaints challenge the issuance of a Corps permit for excess spoil valley fills. Both contain the by-now-familiar claim that the valley fill will cause violations of downstream water quality standards. Both complaints, however, include claims that have not yet generally been advanced against the Corps concerning health effects. Both complaints allege that recent studies have shown a correlation between health effects and proximity to surface mines, and that the Corps should have considered such effects in reviewing the permit applications. The Sierra Club attempted to add similar claims to an earlier challenge to a §404 permit issued to Highland Mining, but a federal district court in West Virginia ruled that the studies had not been presented to the Corps during the permit process and that the Corps had no obligation to revisit the permit decision after the studies became available.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.