A coalition of environmental groups are suing to stop a mountaintop removal coal mining operation in Raleigh County.
In the lawsuit filed Friday, Coal River Mountain Watch, Appalachian Voices and the Sierra Club allege mine operator Republic Energy is illegally operating on the more than 2,000-acre Eagle No. 2 surface mine.
The lawsuit centers on the validity of the mining permit granted to Republic Energy a decade ago. Under the federal Surface Mining Control and Reclamation and Act, a company must begin operations at a mine within three years of a permit being issued, or ask for an extension from state environmental regulators.
Environmental groups allege Republic Energy waited nearly four years before asking for its first renewal.
According to the complaint, filed in the U.S. District Court for the Southern District of West Virginia, the West Virginia Department of Environmental Protection repeatedly allowed the Eagle 2 mining permit to remain valid, despite statutory requirements under federal law.
The state DEP did not respond to a request for comment.
The lawsuit alleges the mine’s permit has expired and the company must stop operations until it gets a new mining permit.
“Allowing an operator to sit on a permit for 10 years and then suddenly start operating is really counter to the whole purpose of the Surface Mining [Control and Reclamation] Act, which is that when a permit is issued the regulator is supposed to consider the most up to date information on the impacts the mine will have and area that’s going to impacted,” said Peter Morgan, a senior attorney with the Sierra Club.
In an statement, a spokesperson for Contura Energy, which recently merged with Alpha Natural Resources, the parent company of Republic Energy, said the company believed “we are in compliance with all applicable rules and regulations.”
Coal River Mountain Watch Executive Director Vernon Haltom disagreed. In an interview, he said the company and DEP are ignoring provisions of the law to the detriment of communities in the region.
According to DEP’s records, the Eagle 2 mining permits most recent renewable expired in June 2018. Haltom said the company did not take adequate measures to ask for an extension.
“They didn’t even go through all the steps they needed had it been a valid permit,” he said. Last month, DEP issued a Notice of Violation to Republic Energy for failing to renew their mining permit.
“It actually would be funny if mountaintop removal weren’t such a deadly process that kills people who live nearby,” Haltom added.
Research has linked the practice, which includes blasting up to 800 feet of mountain, to higher rates of death for those living nearby and an uptick in cardiovascular disease, lung cancer, birth defects and chronic obstructive pulmonary diseases, such as bronchitis and emphysema.
The region just lost a powerhouse of environmental science and advocacy with the death of professor Benjamin Stout. Stout’s work as an educator, an expert witness in the courtroom, as well as his work empowering citizens with science, made long-term impacts regionally and nationally.
Stout was a Wheeling resident and, for the past 26 years, a biology professor at Wheeling Jesuit University. He was a stream ecologist who dedicated his life to science, nature, and above all, community. Ben died of cancer Aug. 3 at his home in Wheeling, surrounded by his family. He was 60.
Stout revealed some of his deepest convictions related to coal mining practices, a topic especially important to him, in a 2008 documentary called Burning the Future: Coal in America.
“When I look at a mountaintop removal site, valley fills,” he said, “I just look at that as a place on Earth whose value was among the best of all places on Earth diminished to among the least of all places on Earth.”
Stout spent a large part of his career studying impacts of surface mining on watersheds and nearby communities. He frequently monitored waters surrounding ponds built to hold coal mining waste — slurry impoundments. As coal companies complied with rules to limit pollution from power plants, Stout found more of those pollutants instead wound up in the ponds.
“The Clean Water Act was the reason slurry impoundments were initially created in order to contain the black water that’s left over from the coal cleaning process,” Stout explained in the film. “Then along comes the Clean Air Act and the irony is now we need to remove even more impurities from the coal, like the heavy metals.” He went on to explain that contaminants in the air have mostly been transferred to water, along with increasingly harsh chemicals used to pull the impurities from coal.
The Expert Witness
Stout was often called as an expert witness in court cases surrounding watershed impairment. Attorney Joe Lovett recalled working with him during a landmark case in the late 1990s.
“It was a case that we brought before Judge Hayden— a federal judge at the time—to seek to stop mountaintop removal in the state,” Lovett said. He recalled the centerpiece of the case was the impacts of surface mining and resulting valley filling practices on surrounding aquatic life. Stout played a key role.
"The courts have this fiction that experts are somehow neutral, like machines. And Ben refused to play along with that," Lovett said.
During the trial, on a snowy February day, Stout guided Judge Hayden through a stream slated to be buried, and Stout did what he loved most: he waded through the stream finding insects.
“I think the judge appreciated that because he was a fisher, and those insects, mayflies and so forth with a very kinds of insects that fly fishers use all the time,” Lovett said. “I think the judge really learned from Ben, and I think that was crucial in winning that case.”
For the first time ever, a judge issued an injunction against a mountaintop removal operation, halting one of the largest ever proposed mountaintop removal operations, Spruce Mine No. .1. Necessary mining approval for Spruce 1 has been hung up in court ever since.
“The courts have this fiction that experts are somehow neutral, like machines. And Ben refused to play along with that,” Lovett said. He said Stout’s outspoken nature would sometimes create problems for him. He said, nevertheless, he admired Stout’s integrity.
“Ben not only as an expert, but as a human being and somebody committed to protecting the natural world really taught all of us how to be good advocates and reminded us why we do what we do.”
The Community Advocate
Stout spoke confidently with judges, lawyers and politicians, but he could also talk just as easily with anyone else.
Stout’s friend and colleague at Jesuit, Mary Ellen Cassidy, worked with him for years studying impacts of slurry impoundments on well water of residents in southern West Virginia. She remembers him as personable and disarming, traits that helped him to connect with even the most isolated community members who were living with polluted water wells.
“We would end up sitting down at [rural residents’] tables and talking just about everything,” Cassidy recalled with a laugh. “He had this kind, open spirit, and that’s who he was. He was very authentic. And people sensed that right away.”
Cassidy said his ability to connect with people and gather and provide valuable, valid research, made it possible to empower communities to affect change. His obituary notes how his work in communities, “led to 500 West Virginia families being connected to a municipal water supply at Williamson.”
The Watchdog
Stout was resourceful and respected by his peers. Standing next to the Monongalia River in Morgantown, Paul Ziemkiewicz, reflected on how waters like these, “benefited mightily from water improvement efforts over the years and to a large extent thanks to Ben’s contribution of improving our water and making places like this an asset to the community rather than what it was 30 years ago, which was kind of a dump.”
"Ben's integrity as a scientist was, was always first and foremost," Ziemkiewicz said.
“Ben’s integrity as a scientist was always first and foremost,” said Ziemkiewicz, director of the West Virginia Water Research Institute at West Virginia University. He worked alongside Stout and other scientists in the wake of a major fish kill on Dunkard Creek, and the horizontal gas drilling boom in 2009 to create the 3 Rivers QUEST program.
“We all compared notes, we all monitored the river using the same protocols and shared our data and as a consequence, we let it be known to the whole world that they were being watched.”
The Educator
Stout’s work was also a source of inspiration to his students at Wheeling Jesuit University.
“You couldn’t help but just want to follow in his footsteps,” former student Jacob Keeny said.
Keeny remembers how Stout turned him on to stream ecology soon after he started at Jesuit in 2011. Keeny said he was inspired by Stout’s unquestionable passion for community service.
“He wanted his students to respect the community first and understand science second. If you couldn’t
"You couldn't help but just want to follow in his footsteps," Keeny said.
connect the two, you were hard pressed to get a good grade in his class,” he recalled. “It was about how well you understood what was going on, and how you could solve problems to fix crises that people were going through.”
Jacob remembers his professor would jump at any chance to work with a community in crisis, and that he’d always take students along with him. For Jacob, that meant getting involved during a major chemical spill in Charleston in 2014 that left 300,000 people without water for days.
“I got a call from him middle of the afternoon during a snowstorm, and he said, ‘Hey, we’re going to be working on this Elk River spill, you want to you want to join me?’ I said, ‘Sure , why not?’”
Stout’s expertise in water testing and innovative problem solving proved to be a value contribution.
“There weren’t a whole lot of press releases explaining what [MCHM] was,” Keeny said. “No studies on it saying what it would do to human health. Ben, he’s a he’s a freshwater stream ecologist. And so he took the approach of seeing what it does to the bugs in the river first.”
Stout was eventually hired by a law firm that brought a class action suit over the spill. Because human health studies can take decades to provide conclusive results, Stout and Keeny turned to insect indicator species in streams. They conducted toxicity tests to gauge the potential health effects of MCHM. Exposure to even very low concentrations of the chemical MCHM turned out to be fatal for the insects.
“And I believe that information that ended up being used in the class action lawsuit and years later, they’ve finally settled that suit. And I think people are starting to get a little bit of justice.”
The recent downturn in coal mining has slowed its spread, but mountaintop removal mining has already reached across the coalfields over the past 30 years.
Using a Google app called Timelapse, you can observe the changes in the central Appalachian coalfields, especially southern West Virginia and eastern Kentucky.
And here’s a close-up of the Hobet Mine in Boone and Lincoln Counties, W.Va.
Timelapse is a global, zoomable video that lets you see how the Earth has changed over the past 32 years. It is made from 33 cloud-free annual mosaics, one for each year from 1984 to 2016, which are made interactively explorable by Carnegie Mellon University CREATE Lab’s Time Machine library, a technology for creating and viewing zoomable and pannable timelapses over space and time.
West Virginia environmental regulators are ordering a company to stop mining permanently at a surface coal mine near Kanawha State Forest.
Keystone Industries LLC signed the consent order with the Department of Environmental Protection last month to permanently halt Kanawha County mining operations near Marmet.
The Kanawha State Forest Coalition has fought the Keystone Development No. 2 mountaintop removal mine for more than two years.
DEP spokeswoman Kelley Gillenwater says Keystone requested the agreement to address multiple patterns of violations.
The company previously faced cessation orders and violations that halted mining, but left a possibility for mining to resume. Gillenwater says the site hasn’t been mined for a year or longer.
Keystone must backfill and regrade the permitted area within nine months.
A $6 million settlement has been reached in federal court that will restore damage from West Virginia mountaintop removal mines.
The Sierra Club, Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy announced the settlement with the Virginia Conservation Legacy Fund. A consent decree was entered Friday in U.S. District Court in Huntington.
The Legacy Fund bought the coal mines involved from bankrupt Patriot Coal last year. The agreement resolves a Clean Water Act lawsuit originally filed against the coal company.
Appalachian Headwaters will lead reclamation, including stream restoration and reforestation. The Legacy Fund won’t conduct surface mining, except to aid reclamation.
Environmental groups say it allows a three-and-a-half year extension to decrease the amount of selenium in surface water.
The settlement involves a site in Boone and Lincoln counties where Gov. Earl Ray Tomblin has proposed building a business park.
The federal Office of Surface Mining Reclamation and Enforcement announced it will fund a million dollar review of current research on links between surface coal mining and human health risks. The announcement came more than a year after the West Virginia Department of Environmental Protection formally requested the review.
Over the last decade, more than two-dozen peer-reviewed studies have found correlations between mountaintop removal coal mining and increased rates of cancer, heart and respiratory diseases, and other negative health outcomes.
More recent studies, including several from West Virginia University, have found more direct links to lung tumors and cardiac dysfunction.
Four public meetings about the review are scheduled to be held by the National Academy of Sciences. The dates have not yet been announced.
Appalachia Health News is a project of West Virginia Public Broadcasting, with support from the Benedum Foundation.
