The Justice Department, on behalf of the U.S. Environmental Protection Agency, filed suit June 6 against Frasure Creek Mining LLC and related companies over allegations that they are illegally disposing of rock and soil from two coal mining operations in eastern Kentucky.
The lawsuit, filed in the U.S. District Court for the Eastern District of Kentucky, is an attempt to get injunctive relief and civil penalties against Frasure Creek Mining, Essar Minerals Inc., Trinity Coal Corp., Trinity Coal Partners LLC, Bear Fork Resources LLC, Falcon Resources LLC and Prater Branch Resources LLC. The lawsuit relates to mining operations in Floyd, Magoffin and Pike counties, Ky. These companies are controlled by Essar, a company out of India.
In this action, the United States seeks: to enjoin the discharge of pollutants into waters of the United States without a permit in violation of Clean Water Act section 301(a); to require defendants, at their own expense and at the direction of the EPA, to restore and/or mitigate the impacts of their allegedly unlawful activities; and to require defendants to pay civil penalties.
This case involves supposedly unauthorized discharges of pollutants into five tributaries of Levisa Fork, a traditional navigable water in eastern Kentucky, during the course of surface mining on two sites located in Floyd, Magoffin, and Pike counties.
Beginning in or around December 2005, the companies commenced surface mining activities at the Pike County (Bear Fork) site. The Bear Fork mining area covers about 682 acres. Defendants and/or persons acting on their behalf constructed two hollow fills and two sediment ponds in streams located on the Bear Fork site without a CWA permit, the lawsuit claims.
Beginning in or about November 2007, defendants and/or persons acting on their behalf commenced surface mining operations at the Hale Fork site, which lies along the Floyd and Magoffin county line. The Hale Fork mining area encompasses about 768 acres. Defendants and/or persons acting on their behalf constructed one hollow fill and three sediment ponds in streams located on the Hale Fork site without a CWA permit, the lawsuit said.
Defendants and/or persons acting on their behalf never obtained a CWA section 404 permit for the Hale Fork or Bear Fork sites, despite the fact that their surface mining operations involved excavating coal seams, then placing the overburden in streams that are jurisdictional waters of the United States, said the lawsuit. Defendants and/or persons acting on their behalf also caused sediment ponds to be constructed in waters of the United States at both sites, again without a CWA permit. Since 2005, these operations have resulted in the excavation and filling of approximately 11,256 linear feet of streams at the sites; about 3,506 linear feet at Hale Fork, and approximately 7,750 linear feet at Bear Fork.
In August 2005, Bear Fork Resources submitted a section 404 permit application to the Huntington District Office of the U.S. Army Corps of Engineers seeking authorization to conduct surface mining activities at the Bear Fork site. In April 2007 and March 2008, Frasure Creek Mining submitted two separate section 404 permit applications to the Corps’ Louisville District Office for surface mining activities at the Hale Fork site. “Defendants and/or persons acting on their behalf began surface mining activities, including the construction of the hollow fills and sediment ponds in waters of the United States, without CWA section 404 permits at either of the Sites,” the lawsuit added.
The defendant companies had not responded to the lawsuit as of June 7.
Notable is that in recent years, due to multiple environmental group lawsuits, section 404 permits have gotten to be a very tough get for coal mining operations, like these, in Central Appalachia. That problem has been compounded over the last three years by a new, get-tough policy by EPA that has in part been invalidated by federal courts. In one case, a federal district court in March threw out EPA’s decision last year to veto a section 404 permit the Corps had issued to an Arch Coal (NYSE: ACI) unit in West Virginia. A federal court in October 2011 also struck down EPA’s “enhanced” review process for 79 section 404 applications.
Said an EPA website devoted to the “enhanced” review process: “On October 6, 2011, the Federal District Court for the District of Columbia set aside the Enhanced Coordination Procedures (ECP) developed by the Department of the Army and the Environmental Protection Agency to expedite review of 79 pending Appalachian surface coal mining permit applications. Corps Districts and the EPA Regions in Appalachia have all ceased using the ECP as of the date of the District Court’s decision. It is important to note that while the court invalidated the ECP, the decision does not affect any statutory or regulatory requirements established under the Clean Water Act, including the Corps’ and the EPA’s Section 404 permitting regulations. A memorandum was transmitted to Corps Districts on November 16, 2011, signed by Assistant Secretary of the Army Jo-Ellen Darcy, clarifying the roles of both agencies moving forward. This memo was also transmitted to the EPA Regional Offices by Acting Assistant Administrator Nancy Stoner.”