Corps, Raven Crest argue against coal permitting complaint

The U.S. Army Corps of Engineers is arguing that it didn’t have to take into account certain health-related impacts when in 2012 it issued a Section 404 Clean Water Act permit to Raven Crest Contracting LLC for a southern West Virginia surface mine.

On May 10, the Corps filed a cross-motion for partial summary judgment in a case filed against it in October 2012 by environmental groups that include the Ohio Valley Environmental Coalition. The lawsuit, one of many in recent years filed by environmental groups about this kind of permitting, is pending at the U.S. District Court for the Southern District of West Virginia.

The Corps requests that the court dismiss Counts Three and Four of the complaint in their entirety, and Count One to the extent that it is based on the Corps’ alleged failure to address human health effects. In their motion, the plaintiffs argue that the Corps was obligated under the National Environmental Policy Act (NEPA) and the Clean Water Act (CWA) to consider various studies or research that identify a general correlation between coal mining activities and health effects on nearby populations.

“These studies do not relate to the specific discharges into waters of the United States that the Corps authorized under CWA Section 404(a) when it issued the permit that is the subject of this case,” the Corps argued in its May 10 filing. “Rather, the studies discuss the general relationship between coal mining as a whole and human health in surrounding communities. Plaintiffs acknowledge that the research does not specify how surface mining causes adverse health effects.”

The Corps said it is not obligated to review the human health effects of the mining activity resulting from activities unrelated to an authorized discharge. This is because the Corps’ CWA permitting jurisdiction, which covers valley fills that cover streams within Corps jurisdiction, does not extend to other aspects of the mining operation.

“This case is not about the validity of the conclusions set forth in the studies cited by Plaintiffs,” the Corps wrote. “Rather, it is about the Corps’ obligations under NEPA and the CWA, and whether the agency should be required to go beyond the analysis required by the applicable regulations to consider information that does not directly relate to the discharges at issue. The applicable legal authority makes clear that the Corps’ permitting jurisdiction is limited to discharges in ‘waters of the United States,’ and that adverse health impacts associated with mining activities in general is beyond that jurisdiction.”

Court case centers on 724-acre Boone North No. 5 permit

This case involves challenges to a Section 404 permit issued in August 2012 by the Corps office in Huntington, W.Va., to Raven Crest for the Boone North No. 5 mine. The Corps approved Raven Crest’s plan to construct five sediment control ponds, and various “mine throughs” as part of surface coal mining operations at a 724-acre site near Racine in Boone County, W.Va. The affected waters are Roundbottom Creek, Mill Branch and unnamed tributaries. The permit was issued after a thorough agency review, including coordination with other federal and state agencies, discussions with Raven Crest and its environmental consultants, and review of comments involving numerous aspects of the permit, the Corps told the court.

Raven Crest said in its own May 10 arguments that it opposes plaintiffs’ motion for partial summary judgment and seeks summary judgment itself. The company agreed with the arguments advanced the Corps that the health studies cited by the plaintiffs are not applicable to this permitting.

The plaintiffs are seeking to expand the scope of the Clean Water Act to include a comprehensive review of the effects of mining activities generally. These efforts fail for several reasons, said Raven Crest, including:

  • the Corps properly limited the scope of its review to the effects of CWA-regulated discharges of fill material;
  • many of the studies either lumped all types of mining (including underground) together or limited themselves to examining types of mining that Raven Crest will not conduct and, therefore, cannot be used to discriminate the potential effects of Raven Crest’s mine;
  • none of the studies claim to establish a causal connection between mining and health statistics and, for the most part, do not even posit a theory of causation; and
  • as part of its entirely rational decision to limit the scope of its Section 404 analysis to the impacts of fill material, the Corps did examine the role of other statutory programs in controlling the impacts of surface mining generally.

The parent of Raven Crest is Xinergy Ltd., which said about this operation in a March financial report: “Our Raven Crest surface and high wall miner operations and Brier Creek underground mines in West Virginia were idled during the third quarter of 2012 due to poor market conditions. We continue efforts to reduce inventory, while we assess opportunities for long-term contracts at Raven Crest and Brier Creek that would justify construction of the preparation plant that we halted during the first quarter of 2012. During March, 2013, we amended our coal supply agreement that previously provided for the delivery of 360,000 tons per year in each of 2013 and 2014 with index-based pricing. The amendment effectively terms out the first delivery date to January 2014, continuing through the end of 2015 at the same rate of 360,000 tons per year.”

All three operations listed with the U.S. Mine Safety and Health Administration under Raven Crest – the Bull Creek prep plant and the Boone North No. 1 and No. 2 surface mines – are all categorized as nonproducing by MSHA.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.