Massive new valley fill permit challenged

A permit issued in July to Leeco allowing the coal company to destroy three miles of stream and construct a huge valley fill was issued without consideration of negative health impacts on nearby residents and those downstream, a lawsuit filed today claims. Both the Clean Water Act (CWA) and the National Environmental Policy Act (NEPA) require such consideration.

“This mine is going to ruin our neighborhood here in Sassafras," said KFTC member Pam Maggard. "We have several people on my street who already have breathing problems and kids with asthma. Once again no one will be able to enjoy being outside on their porches and in their yards because of all the dust and mud."

The proposed mining will affect residents in the Stacy Branch area of Lotts Creek along the Perry and Knott County border in eastern Kentucky. The permit, a requirement under the Clean Water Act for mountaintop removal mining, was issued by the U.S. Army Corps of Engineers on July 26.

Under the CWA, the Corps should take into consideration the potential for "[s]ignificantly adverse effects of the discharge of pollutants on human health or welfare …" In addition, the Corps must undertake a public interest review before issuing any permit that includes an examination of the project’s effects on the “needs and welfare of the people” and, according to the EPA, should include a consideration of the permit’s impacts to human health.

NEPA requires a federal agency to examine, among other things, “[t]he degree to which the proposed action affects public health and safety,” including “[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique and unknown risks.”

There is no evidence that the Corps considered any of these factors before issuing the permit.

"As a family physician and public health educator who practiced in rural Kentucky for over 30 years, I am concerned about recent research showing that cancer, cardiovascular disease, birth defects and low birth weight babies occur at higher rates in people living near mountaintop removal coal mining sites," said Dr. John Patterson in a press release isued by the Sierra Club and KFTC, who filed the lawsuit. "These communities also experience a lower overall quality of life and a lower life expectancy. These medical and public health concerns make it extremely important that we take the human health cost of such mining into account in all decisions about such mining practices."

Residents in Stacys Branch and Lotts Creek have worked for several years to protect their community from this massive mine, including hosting several top-level EPA officials in their community last year. EPA had held up the issuance of the permit while it reviewed the environmental impacts that the Corps and state officials had disregarded. It negotiated with the coal company to reduce the number of valley fills.

"I am greatly concerned for the people who live, fish and play downstream from these mining sites," said Lane Boldman of the Kentucky Sierra Club. "It is irresponsible for the Corps to approve any permit that doesn’t take the devastating health impacts of mountaintop removal mining into account."

Maggard knows what will happen if the mining is allowed to take place.

"We lived through this a few years ago when coal trucks were hauling through Sassafras six days a week, hundreds of trucks a day. We hadn’t heard anything about this proposed permit for a few years, I really thought and hoped they had decided to not mine that mountain.”

The action was filed in the U.S. District Court for the Western District of Kentucky. The Sierra Club and KFTC are represented in this matter by Appalachian Mountain Advocates, the Appalachian Citizens’ Law Center and Earthjustice.