Fighting for Justice in the Coalfields

Judge rules in ACLC case: Regulators don’t have to consider health impacts in mine permitting

Judge: Regulators don’t have to consider overall health impact of coal mines

Lexington Herald-Leader
August 26, 2013
By John Cheves


The Army Corps of Engineers does not have to weigh the cumulative health impact caused by surface mining for coal before it issues a permit, a federal judge has ruled.

On Friday, U.S. District Senior Judge Thomas B. Russell of Louisville cleared the way for James River Coal Co. to mine 756 acres of mountain on the Perry-Knott county line and bury 3.5 miles of streams with the “spoil,” the loose dirt and rocks left after reclamation.

Three area residents joined a lawsuit filed by the Sierra Club and Kentuckians for the Commonwealth last year to challenge the permit that the Corps issued for the project. Among their concerns, they said the Corps failed to consider an emerging body of evidence indicating that people who live near surface mines are more likely to suffer from cancer, heart disease, birth defects and other health problems.

In his decision, Russell wrote that the Corps is “not obliged … to consider the cumulative effects of mining operations as a whole.” It only has to consider the effects of pollutants that coal operators are authorized to discharge into waterways, and it did that adequately for this permit, Russell wrote.

“Plaintiffs make a number of compelling and well-documented arguments,” he wrote. “Were the court deciding the permit issue in the first instance, perhaps its opinion would be different. However, under the highly deferential standard of review afforded to the Corps, the court finds it did not act unreasonably.”

The Lexington Herald-Leader reported on the lawsuit in June as part of a yearlong series about the challenges facing Eastern Kentucky 50 years after lawyer Harry Caudill published his book Night Comes to the Cumberlands: A Biography of a Depressed Area.

One of the plaintiffs is Alice Whitaker, executive director of Lotts Creek Community School, just north of the mine site.

“I am extremely concerned about health problems associated with mountaintop-removal mining and the threat to our children,” Whitaker said Monday. “The government says it wants to support rural health, and I thought we were making progress, but permitting mines without addressing health risks is a big step backwards.”

The plaintiffs have not decided whether they will appeal, said Mary Cromer, an attorney with the Appalachian Citizens’ Law Center in Whitesburg.

“What’s important here is that these health studies keep coming out regarding the impact of surface mining, and each one reinforces the last one and draws a clearer picture of the risks to human health,” Cromer said. “Federal agencies that regulate mining are supposed to consider, among other things, the health impact of mining operations.”

James River Coal, based in Richmond, Va., did not return a call seeking comment Monday.

The company first applied in 2007 to mine the mountain north of the towns of Vicco and Sassafras. It planned to build six slurry ponds to hold coal sediment waste and dump the spoil into six “valley fills,” burying 4.2 miles of streams, including Stacy Branch of Carr Creek and Sugar Branch of Yellow Creek, requiring them to be rechannelled. These small roadside streams eventually drain into the Kentucky River.

After neighbors and the U.S. Environmental Protection Agency protested, James River Coal returned in 2011 with somewhat reduced plans involving less acreage, fewer miles of streams, one larger valley fill and one larger slurry pond. It also offered to mitigate the destruction in Knott County with restoration work on damaged streams in Wolfe County and $752,047 in payments to the state for additional repairs to Eastern Kentucky waterways. The corps then approved the permit.

During the six years the company has fought to mine the mountain, the bottom has fallen out of the Central Appalachian coal market because of reduced demand. This year, James River Coal has reported large drops in revenue and has idled mines in Kentucky and West Virginia.

In their lawsuit against the mining permit, the plaintiffs cited a growing body of evidence — more than 20 epidemiological studies — indicating that people who live near surface mines are more likely to suffer serious health problems, perhaps because of pollutants introduced into the local environment by massive disruptions of land and water.

A cancer mortality cluster sits over the coalfields of southeastern Kentucky. Researchers say this disparity remains even after poverty, low education, smoking, unhealthy diet and other factors are taken into account.

Similarly, a 2011 study at the University of Kentucky revealed that toenail clippings taken from Eastern Kentucky coal county residents showed higher levels of arsenic, cadmium and nickel than clippings taken from residents of industrialized Louisville. These heavy metals can cause a range of illnesses and disabilities, particularly in children.

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