Groups Set to Sue Over Mining Mistake
By Andy Mead, The Lexington Herald-Leader, Ky.
Jun. 24–Two environmental groups are preparing to sue a coal company for mining around streams in Pike County without a federal permit.
The Sierra Club and Kentuckians for the Commonwealth say they discovered in May that the operators of a surface mine they had photographed on April 1 had applied for, but not received, a “404 permit.” Such permits are required from the Army Corps of Engineers when streams, or “waters of the United States,” are impacted by mining.
On the second trip, they took copies of Clintwood Elkhorn Mining’s permit application and a GPS unit.
“We thought, ‘Well, hell, there it is. It’s already been mined,’ ” Sierra Club organizer John Cleveland said Tuesday.
In the area near Millers Creek north of Fishtrap Lake, rock had been dumped into valleys, sediment ponds had been created and partial reclamation had begun.
A spokesman for TECO Energy, Clintwood Elkhorn’s parent company, said the area had been mined by mistake. Rick Morera also said that the company notified federal officials of the error well before Cleveland came across it. He declined to say anything else, citing the possible legal action against his company.
Earlier this month, the environmental groups put the company on notice that it faces a lawsuit for “reckless disregard” of the Clean Water Act. The warning letter, required in suits of this type, also says the environmental groups are willing to discuss a settlement.
But the lead attorney on the case, Joe Lovett of the West Virginia-based Appalachian Center for the Economy and the Environment, said the company had not responded to his letter.
The process of obtaining a 404 permit from the Army Corps of Engineers allows changes that can minimize the impacts of mining, Lovett said.
“If operators are allowed to evade the Clean Water Act, they’re likely to do more harm to the environment,” he said.
Clintwood Elkhorn, which has continuing mining operations around Fishtrap Lake, had a state permit for a surface mine in the Millers Creek area.
It applied for a 404 permit last summer, but it has not been granted, said Lee Anne Devine, acting chief of the regulatory office for the corps’ Louisville District.
She said Clintwood Elkhorn contended it did not know there were streams in the new mining area.
“And as soon as the company realized they had ‘waters of the United States’ they were impacting, they immediately stopped,” she said.
The company is unlikely to face penalties from the corps because it is being cooperative, she said.
But Lovett said Clintwood Elkhorn should face “significant penalties” as a warning to it and other mining companies.
“You cannot unring the bell here,” he said. Those valleys have been filled.”
Reach Andy Mead at (859) 231-3319 or 1-800-950-6397, Ext. 3319.
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