Judge temporarily blocks work at planned surface mine in Knott and Perry

bestep@herald-leader.comSeptember 4, 2013 

A strip mine atop mountains in Eastern Kentucky.

DAVID PERRY | 1998 STAFF FILE PHOTO — Herald-Leader Buy Photo

A judge has temporarily blocked work at a large, disputed surface mine in Knott and Perry counties.

U.S. District Judge Thomas B. Russell issued a temporary injunction directing the U.S. Army Corps of Engineers to temporarily suspend the permit it issued to Leeco Inc., a subsidiary of James River Coal, for the 756-acre Stacy Branch mine.

The order also barred Leeco from filling any streams at the site, which is near the Perry County town of Vicco.

The company has not started mining at the site but said it planned to begin work on a valley fill — a place to put blasted rock from the mine — as soon as possible after clearing timber, groups opposing the mine said in a court motion.

Kentuckians for the Commonwealth and the Sierra Club had sought an emergency order from Russell to block work at the mine.

Russell granted the injunction Friday and kept it in place after a conference call this week. It will stay in place at least two more weeks, until a further ruling from Russell about whether the injunction should continue while the environmental groups ask the U.S. 6th Circuit Court of Appeals to overturn a decision allowing Leeco to mine at Stacy Branch, said Jennifer Chavez, an attorney for Earthjustice, which represents the groups.

It could take months to decide the appeal.

The mine has been the subject of contention for years.

Leeco applied in 2007 for a permit to mine a mountain north of Vicco and Sassafras, a community in Knott County.

When coal companies blast away rock to uncover coal seams, there is leftover rock that can't be put back onto the mountain. Typically, the companies put the excess material in nearby valleys, creating a valley fill. Fills often bury parts of streams.

The original Stacy Branch proposal included six fills and would have buried or mined through more than four miles of streams.

The company revised the proposal after nearby residents and the U.S. Environmental Protection Agency objected.

Last year, the Corps of Engineers approved a permit for the mine that included only one valley fill and would affect 3.4 stream miles.

The Corps said the mine would not cause significant degradation of streams.

The environmental groups and three local residents challenged the permit in court. They argued that the Corps had erred on several fronts, including that it had failed to assess the potential harm to human health from the mine.

The groups cited a growing number of studies and reports that have found correlation between surface mines and health problems among nearby residents, including birth defects, cancer and heart problems — perhaps linked to metals and other pollutants released by the mining.

Leeco argued that studies have not documented mining as a direct cause of such health problems.

On Aug. 23, Russell ruled that the environmental groups made a compelling argument, but that under current standards, the Corps of Engineers is not required to weigh the cumulative health impact of an entire mining operation.

The agency only has to judge whether permits properly control the discharge of certain pollutants, and it did in the case of the Stacy Branch mine, the judge ruled.

The environmental groups argue that Russell erred in his interpretation of the Corps of Engineers' duty to consider the health impacts of surface mining.

The groups said the potential damage to their interests through the destruction of streams by mining through them or burying them outweighs what Leeco could lose if the permit is put on hold during the appeal.

"Money can be earned, lost and earned again; a valley once filled is gone," the groups said in their motion, which quoted from another court decision.

Leeco's attorneys, Kevin McGuire and Robert McLusky, said the company will oppose an injunction that would block work at the mine during an appeal.

Russell rejected the environmental groups' arguments, "and there is no justification for the permit to be suspended," they said in an email message.

Bill Estep: (606) 678-4655. Twitter: @billestep1.

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