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This article originally provided by WV Public Radio

Coal companies accused of mining without a permit

By Scott Finn

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A West Virginia environmental group best known for challenging mountaintop removal permits in court is planning to sue two companies for mining before they received any permit at all.

The Appalachian Center for the Economy and the Environment says companies were strip mining and filling streams without the required permits from the U.S. Army Corps of Engineers. That’s a violation of the law with civil and even criminal penalties.

But there’s no effort so far to punish the alleged violators. And according to one regulator, mining without the Corps’ permission has become a relatively common practice.

Earlier this month, the Appalachian Center informed Clintwood Elkhorn Mining and Appolo Fuels, both of Kentucky, that it intends to sue them in court for alleged violations of the federal Clean Water Act.

Both companies are involved in mountaintop-removal operations, where layers of rock are pushed aside to expose coal seams underneath, and the waste rock is dumped into nearby valleys and streams.

The Clean Water Act requires coal companies to receive a permit from the Army Corps of Engineers before they can fill a stream – something both companies apparently failed to do.

Appolo Fuels is accused of filling at least two hollows and approximately 2,000 feet of streams in Claiborne County, Tennessee, without a Corps permit.

And Clintwood Elkhorn Mining, a subsidiary of Tampa-based TECO Energy, is accused of mining an area near Fishtrap Lake in Pike County, Kentucky -- filling two streams and building two sediment ponds without the required Corps permit.

"Everybody knows it. Every mining operator knows it. To fill a stream without a permit is beyond the pale," says Joe Lovett, executive director of the Appalachian Center.

He says that without a permit, there’s no way to know whether the environment – or the public – has been protected.

"We don’t even know that the operator would have been able to get a permit. I mean, these permits are difficult to get, and even if the permit had been issued, it may have looked much different. And by moving forward without the permit, the operator has made it really impossible for the Corps to control the environmental impacts of the mine."

TECO Energy spokesman Rick Morera says it was an honest mistake, one that the company admitted to regulators back in March.

"We believe that this is an isolated issue, in that we voluntarily brought this to the appropriate regulatory agency’s attention about three months ago now," Morera says. "And I think one of the issues we have with all general legal matters, we really cannot provide a whole lot of additional details, or I can’t provide a more in-depth response than that."

Finn: Are you guys then saying that basically this was not an intentional act by your subsidiary?

Morera: Well, again, going back to what I initially stated, we believe that it was an isolated issue. I think that we’re very proud of the work we’ve done at TECO Coal to protect the environment, and we think our approach is second-to-none in the industry.

Appolo Fuels president Gary Asher could not be reached for comment late Thursday afternoon.

In the Fishtrap Lake case, two groups are taking the lead: Kentuckians for the Commonwealth and the Sierra Club. Lawyer Aaron Isherwood of the Sierra Club says this is a new one for him.

"Well you know, it’s pretty outrageous situation where a mining company just sort of blatantly disregards the permit requirement like this," Isherwood says. "I haven’t encountered this before, although I have to say that it’s my sense the agency is really underfunded, and doesn’t have the ability to investigate it like they should, which is why the Sierra Club and Kentuckians for the Commonwealth are trying to help out here, since it appears the cop is not on the beat, so to speak."

The Corps could work with the federal Environmental Protection Agency or federal prosecutors to investigate what’s happened here. But one regulator saiys that isn’t likely to happen.

Lee Anne Devine is acting regulatory chief of the Louisville District of the Army Corps of Engineers. She declined to speak on tape, but she said that Clintwood Elkhorn Mining and TECO Energy had "made a mistake" and were "being very cooperative. 

She also said that mining without a Corps permit, both inadvertently and intentionally, has happened before in her district – as often as "a few times a month."

That’s exactly what Lovett is worried about.

"My fear, and the fear of the Sierra Club and others, is that this is a pretty common practice in Kentucky and Tennessee. We certainly hope not, but that’s what we’re hearing," he says.

The whole thing reminds some observers of the scene from the movie "Blazing Saddles," where bad-guy Harvey Korman is interviewing a group of bandits he’s trying to hire., When Korman tries to give them their badgest, one bandit says, "Badges? We don't need no stinking badges."

But in this case, the catch-phrase would be: "Permits? We don’t need no stinking permits!"

Lovett says it would be comical, except the issue has real consequences on the people who live near the mines.

"We know generally that these valley fills are very harmful to the streams below them, particularly to lakes, where water is still, so all the streams flow into the lake and you can have problems with toxic pollutants, bio-accumulative pollutants, even sediments. But the purpose of seeking a permit is to allow the agency to make that determination before somebody does the mining. In this case, because the Corps didn’t even have an opportunity to do that, we really don’t know," Lovett says.

Fishtrap Lake already has its share of environmental problems. Retired coal miner Kenneth Taylor lives two miles from the lake. He says the lake used to be wonderful.

"Well, I used to enjoy it more often when there were more fish to catch and when you could swim in it. Fishin’ was real good. I used to walk down to the water and catch a lot of fish. Used to catch fish all night long, two or three days in a row. Now, you can’t hardly catch anything."

Taylor knows he would get busted if he tried to change the creek in front of his house without the proper permission. So why, he asks, shouldn’t coal companies be treated the same?

"I think they ought to be held accountable for it. Because if it was me over here in front of my house filling the creek in, and changing the creek around and making ponds and this and that, I believe they would put the law to me. I don’t see where a coal company would be any different," Taylor says.

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