lawsuits - Appalachian Mountain Advocates

23 Pages·2012·0.19 MB·English

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WESTVIRGINIA
HUNTINGTON DIVISION

OHIO VALLEY ENVIRONMENTAL )
COALITION, INC., WEST VIRGINIA )
HIGHLANDS CONSERVANCY, INC., )
SIERRA CLUB, and COAL RIVER )
MOUNTAIN WATCH, INC., )
)
Plaintiffs, )
)
v. ) Civil Action No. __________
)
UNITED STATES ARMY CORPS OF )
ENGINEERS, THOMAS P. BOSTICK, )
Commander and Chief of Engineers, U.S. Army )
Corps of Engineers, and STEVEN MCGUGAN )
Colonel, District Engineer, U.S. Army Corps of )
Engineers, Huntington District, )
)
Defendants. )

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
INTRODUCTION
1. This Complaint challenges the U.S. Army Corps of Engineers’ (“the Corps’”)
failure to comply with the Clean Water Act (“CWA”), 33 U.S.C. § 1344 et seq., the National
Environmental Policy Act (“NEPA”), 42. U.S.C. § 4321 et seq., and the Administrative
Procedures Act (“APA”), 5 U.S.C. § 500 et seq., relating to the issuance of a permit for a large
surface mine in Boone County, West Virginia. Plaintiffs challenge the Corps’ August 2012
decision to issue a § 404 permit to Raven Crest Contracting, LLC (“Raven Crest”) to place fill
material in 15,079 linear feet of stream in Roundbottom Creek and Mill Branch watersheds near
the community of Peytona in conjunction with the mine-through of several streams and the
construction of two sediment ponds on the Boone North No. 5 Surface Mine.
2. The Boone North No. 5 Surface mine is a 725-acre mountaintop removal (or
“area”) mine. The project will result in the destruction of all mine-through streams. These
streams will then be reconstructed on top of spoil material replaced on the site during
reclamation. Additional spoil material will be trucked and disposed of on an adjacent mine site.
3. Plaintiffs ask the Court to (1) declare that the Corps has violated the APA, the
CWA and NEPA by issuing the Boone North No. 5 permit, and (2) order the Corps to vacate the
permit, (3) enjoin the Corps from authorizing any further mining, valley fills, or sediment ponds
in connection with this permit until it complies with the CWA and NEPA, and (4) award to
Plaintiffs their costs and expenses, including reasonable attorneys’ fees.
JURISDICTION AND VENUE
4. This action arises under NEPA, the CWA and the APA. The Court has subject
matter jurisdiction pursuant to 28 US.C. §§ 1331, 1361, 2201 and 2202.
5. Venue is appropriate in this judicial district pursuant to 28 U.S.C. § 1391(e)(2)
because a substantial part of the events or omission giving rise to these claims occurred in the
Corps’ Huntington, West Virginia District Office, and because the mining operation is located
within the Southern District of West Virginia.
PARTIES
6. Defendant U.S. Army Corps of Engineers is the federal agency charged with
administering § 404 of the CWA for discharge of dredged or fill material into waters of the
United States. The Corps is headquartered in Washington, D.C. and has a District Office in
Huntington, West Virginia.
7. Defendant Lieutenant General Thomas P. Bostick is the Chief of Engineers and
Commander of the U.S. Army Corps of Engineers. He is charged with the supervision and
management of all Corps decisions and actions, including the issuance of Corps permits under §
404 of the CWA.
8. Defendant Colonel Steven McGugan is the District Engineer for the Huntington
District Office of the U.S. Army Corps of Engineers in Huntington, West Virginia. The
Huntington District Office is responsible for issuing permits for discharges of dredged and fill
material into waters of the United States and West Virginia under § 404 of the CWA.
9. Plaintiff Ohio Valley Environmental Coalition (“OVEC”) is a nonprofit
organization incorporated in Ohio. Its principal place of business is in Huntington, West
Virginia. Most of OVEC’s approximately 1,000 members reside in West Virginia, Kentucky and
Ohio, with other members located in Indiana, Washington, D.C., New York, North Carolina,
Pennsylvania, Tennessee, and Virginia. Its mission is to organize and maintain a diverse
membership dedicated to the improvement and preservation of the environment through
education, grassroots organizing and coalition building, leadership development and media
outreach. OVEC has focused on mining issues and is a leading source of information about
environmental issues related to mountaintop removal coal mining in Kentucky and West
Virginia.
10. Plaintiff West Virginia Highlands Conservancy, Inc. (“the Conservancy”) is a
nonprofit grassroots membership organization whose volunteer board and approximately 1,600
members work for the conservation and wise management of West Virginia’s natural resources.
Incorporated in West Virginia in 1967, it is one of the state’s oldest environmental advocacy
organizations. For over four decades it has been a leader in citizen efforts to protect West
Virginia’s people, land, and water resources from the harmful effects of coal mining.
11. Plaintiff Sierra Club is a nonprofit corporation incorporated in California, with
more than 600,000 members nationwide and approximately 2,000 members who reside in West
Virginia and belong to its West Virginia Chapter. The Sierra Club is dedicated to exploring,
enjoying, and protecting the wild places of the Earth; to practicing and promoting the responsible
use of Earth’s resources and ecosystems; to educating and enlisting humanity to protect and
restore the quality of the natural and human environment; and to using all lawful means to carry
out those objectives. The Sierra Club’s concerns encompass the exploration, enjoyment and
protection of surface waters of West Virginia.
12. Plaintiff Coal River Mountain Watch (“CMRW”) is a grassroots organization
begun in 1998 in response to the fear and frustration of people living near or downstream from
huge mountaintop removal sites. CMRW is working towards stronger and more self-sufficient
communities that are in control of their natural resources. CMRW has seen the coal industry
extract wealth from southern West Virginia for decades, leaving behind polluted water and
destroying a unique culture and way of life. The mission of CMRW is to stop the destruction of
West Virginia’s communities and environment by mountaintop removal mining, to improve the
quality of life in West Virginia and to help rebuild sustainable communities.
13. Plaintiffs sue on behalf of their organizations and their members. Plaintiffs’
members have suffered, and will suffer, injuries to their aesthetic, recreational environmental
and/or economic interests, from Defendant’s past and threatened future authorizations of stream
filling, and disturbances related to mining activities in Kentucky pursuant to individual § 404
permits, including the Stacy Branch Permit. Plaintiffs’ members have also suffered, and will
continue to suffer injuries to the health of themselves, their families and communities caused by
these mining activities, and by their reasonable concern about the health impacts of these mining
activities. These activities make drastic changes to the landscape, eliminate large sections of
forest, permanently bury miles of streams, and pollute downstream waters. Mounting scientific
research shows that living near large mountaintop removal mines, such as the Boone North No. 5
Surface Mine, increases the chances of developing serious health problems and/or dying from
chronic conditions. Plaintiffs members live, recreate, flyover, use, and/or enjoy the natural and
human environment near these areas. Their use and enjoyment of these areas is reduced by these
mining activities. Further, Plaintiffs’ members, their families, and/or their communities suffer
health problems that they believe come from living in the vicinity of mountaintop removal
mining, or are concerned that such health problems will develop in the future. They are
concerned that increased mining will increase the prevalence and/or severity of these health
problems.
a. For example, one of Plaintiffs’ members lives within ¼ mile of the approved
Boone North No. 5 permit boundary. She has lived in the same house since she was 3 years old
and her husband also grew up in the area. The Coal River and its tributaries, including
Roundbottom Creek and Mill Branch have been important to her for her entire life. She
remembers these streams and the Coal River itself as having exceptional water quality, and she
would swim and fish in the river and used to find large mussels there. She knows the water
quality has deteriorated and blames the mines. She would no longer eat fish out of the river. In
addition to the environmental damage she has witnessed, this member also worries that large
scale surface mining has damaged the health of her family and her community. She says that
there is an “astronomical” cancer rate in the community, and she fears it could come from well-
water contaminated by the mines. Her husband has been diagnosed with leukemia, has had his
gall-bladder removed and suffers from a myriad of digestive ailments. Her daughter has had
chronic lung problems and even decided to move away, in part because living near active mines
exacerbated her problems. This member is concerned that living so close to the Boone North
No. 5 mine will only increase the prevalence and/or severity health problems suffered by her
family and her neighbors.
14. In addition to those injuries mentioned above, Plaintiffs and their members have
procedural rights under the CWA and NEPA to comment on the Corps’ review of the
environmental impacts of the mine, as well as the activities the permittee has proposed to
undertake to mitigate harm from the mine. Plaintiffs’ members have recreational and aesthetic
interests as well as concerns about health effects. In short, they have an interest in the viability
of the watersheds affected by the Boone North No. 5 mine and in maintaining the overall health
and integrity of those watersheds and the communities which rely upon them.
STATUTORY AND REGULATORY BACKGROUND
15. Congress enacted the CWA to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this goal, the
CWA prohibits the discharge of any pollutant, including dredged and spoil or other fill material,
into navigable waters unless authorized by a permit. Id., § 1311, 1344. One such permit is a
permit under § 404 of the CWA.
16. The CWA authorizes the Secretary of the Army to issue permits, under certain
circumstances, “for the discharge of dredged or fill material into the navigable waters at
specified disposal sites.” Id. § 1344(a). The Secretary of the Army acts through the Chief of
Engineers of the U.S. Army Corps of Engineers. Id. § 1344(d); 33 C.F.R. § 323.6(a).
17. The U.S. Environmental Protection Agency (“EPA”), in conjunction with the
Corps, has developed Guidelines for discharging fill material under § 404 of the CWA. 40
C.F.R. § 230.2(a). Under Corps policies, a § 404 permit “will be denied if the discharge that
would be authorized by any such permit would not comply with” the Guidelines. 33 C.F.R. §
320.4(a).
18. Pursuant to the Guidelines, no permit shall be issued that “will cause or contribute
to significant degradation of the waters of the United States.” 40 C.F.R. § 230.10(c).
19. Findings of significant degradation or of no significant degradation must be based
on several factual determinations, including a determination about “the nature and degree of the
effect that the proposed discharge will have, both individually and cumulatively, on the structure
and function of the aquatic ecosystems and organisms.” Id., § 230.11(e).
20. The Corps’ analysis of significant degradation must also take into account
“[s]ignificantly adverse effects of the discharge of pollutants on human health or welfare. . .” 40
C.F.R. § 230.10(c)(1).
21. In EPA’s most recent guidance on review of Appalachian coal mining permits,
the agency noted that “[p]ossible human health impacts from coal mining activities have also
been documented, including peer-reviewed public health literature that has preliminarily
identified associations between increases in surface coal mining activities and increasing rates of
cancer, birth defects, and other health problems in Appalachian communities.”
22. Many of these studies were specifically identified by the EPA in its analysis of a §
404 permit issued to Mingo Logan Coal Company’s Spruce No. 1 Mine. There EPA concluded,
“[a] growing body of research suggests that health disparities are not uniformly distributed
across the Appalachian region, but instead are concentrated in areas where surface coal mining
activity takes place.”
23. Under the Guidelines, the Corps must adopt practical alternatives to avoid
environmental impacts of the discharge. 40 C.F.R. § 230.10(a). It must also take “appropriate
and practicable steps” to “minimize potential adverse impacts of the discharge on the aquatic
ecosystem.” Id., § 230.10(d).
24. The Corps’ significant degradation determination must be based on the “effects
contributing to the significant degradation considered individually or collectively.” 40 C.F.R. §
230.10(c). The determinations of effects of each proposed discharge “shall include” a
“determination of the cumulative effects on the aquatic ecosystem.” Id., § 230.11 and (g).
25. Under the Guidelines, “[n]o discharge of dredged or fill material shall be
permitted if it . . . [c]auses or contributes . . . to violations of any applicable State water quality
standard.” 40 C.F.R. § 230.10(b). States provide a certification under § 401 of the CWA that
proposed projects will not violate water quality standards. However, when the EPA raises water
quality concerns, such concerns must be addressed by the Corps despite a valid § 401
certification.
26. In addition to the specific considerations under the Guidelines, the Corps must
undertake a public interest review before issuing any permit. 33 C.F.R. § 320.4. This review
necessitates a review of the project’s effects on the “needs and welfare of the people” and,
according to EPA guidance, should include a consideration of the permit’s impacts to human
health. 33 C.F.R. § 320.4(a).
27. The purpose of NEPA is, in part to “promote efforts which will prevent or
eliminate damage to the environment and biosphere and stimulate the health and welfare of
man.” 42 U.S.C. § 4321.
28. NEPA requires Federal agencies to prepare a detailed environmental impact
statement (EIS) for every major federal action significantly affecting the quality of the human
environment. 42 U.S.C. § 4332(2)(C).
29. NEPA requires a federal agency to examine, among other things, “[t]he degree to
which the proposed action affects public health and safety.” 40 C.F.R. § 1508.27.
30. Under NEPA, the Corps must analyze direct and indirect environmental effects of
the proposed action, including cumulative impacts. The Corps must evaluate “[w]hether the
action is related to other actions with individually insignificant but cumulatively significant
impacts.” 40 C.F.R. § 1508.27(b)(7).
31. The Corps’ scope of analysis for analyzing impacts of a project under NEPA
should be the same scope used for analyzing benefits and alternatives. 33 C.F.R. § 325 App. B
7(b).
32. NEPA requires that the Corps “insure the . . . scientific integrity of the discussions
and analyses” in an EIS and “make explicit reference . . . to the scientific and other sources relied
upon for conclusions in the statement.” 40 C.F.R. § 1502.24.
33. In evaluating severity of an impact under NEPA, the Cops must take into account
“[t]he degree to which the effects on the quality of the human environment are likely to be highly
controversial” and “[t]he degree to which the possible effects on the human environment are
highly uncertain or involve unique or unknown risks.” 40 C.F.R. § 1508.27(b).
34. The APA allows judicial review of final actions by administrative agencies such
as the Corps and the EPA. A court shall “hold unlawful and set aside agency action, findings,
and conclusions found to be . . . arbitrary and capricious, an abuse of discretion, or otherwise not
in accordance with the law.” 5 U.S.C. § 706(2)(A).
FACTS CONCERNING THE RAVEN CREST BOONE NORTH NO. 5 SURFACE
MINE

35. On June 29, 2010, the Corps issued a public notice of its proposed issuance of an
individual § 404 permit to Raven Crest Contracting, LLC to allow the mine-through of 15,079
linear feet of stream at the Boone No. 5 surface mine, including several tributaries of
Roundbottom Creek and Mill Branch. The construction of in-stream sediment ponds would
impact an additional 1,108 feet of perennial streams and 1,555 feet of intermittent stream in the
same watershed. The Boone No. 5 surface mine is located in Boone County, West Virginia near
the communities of Peytona and Racine.
36. Plaintiffs submitted timely comments to the Corps on July 1, 2010. These
comments included citations to and descriptions of several studies that showed coal mining has
significant health impacts on people living in communities near coal mines. The comments
explained to the Corps that a rise in conductivity is expected from new surface operations, and
detailed the scientific evidence showing that conductivity is harmful to aquatic life downstream
from these operations. Further, the comments noted that many of the seams to be mined on the
Boone No. 5 surface mine were identified by the West Virginia Geologic and Economic Survey
as having a high potential for toxic selenium discharges. The comments described evidence
showing the harmful effects of selenium on aquatic life.
37. Plaintiffs followed their initial letter with two additional letters dated November
11, 2011 and August 12, 2012. These letters provided further details on Plaintiffs’ concerns
regarding conductivity, selenium, and impacts to human health.
38. On July 28, 2010, EPA sent comments to the Corps concerning the proposed 404
permit on the Boone North No. 5 surface mine. EPA informed the Corps that “EPA believes the
project as currently proposed may not comply with the Section 404(b)(1) Guidelines, that the