West Virginia Record

CHARLESTON - A coal company has filed a federal complaint against three non-profit organizations, asking the court to rule on the validity of a permit it has been issued that would allow it to operate a surface mine.

Fola Coal Company filed the declaratory judgment complaint in response to a motion for leave filed April 16 in civil court by the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch.

The legal actions started after Fola received a permit, called a Section 404 permit, from the U.S. Corps of Engineers on March 5, 2008. That permit allowed it to place dredged or fill material into streams while it operated Ike Fork No. 1 and Ike Fork No. 2 Surface Mines, according to a complaint filed in U.S. District Court.

None of the three non-profit groups were happy with the issuance of the permit.

They said it violated two acts meant to protect the environment -- Clean Water Act and the National Environmental Policy Act -- and another act governing the way agencies establish regulations -- the Administrative Procedure Act.

OVEC, WVHC and CRMW had already been involved in numerous lawsuits challenging the validity of Section 404 permits issued to coal companies.

Even now, they are involved in ongoing litigation.

They may bring Fola into their current civil case, which involves multiple parties, and ask the court to revoke or suspend Fola's permit, according to the complaint Fola filed.

The non-profit groups claim the Corps should not have issued a permit to Fola for multiple reasons.

First, the Corps violated the CWA when it determined Ike Fork No. 1 and Ike Fork No. 2 would not cause significant degradation of the waters, the groups allege. The non-profits claim it will cause harm to the streams.

Second, the Corps violated the CWA when it authorized Fola to discharge fill material into stream segments, the agencies claim. They argue "the pollutants discharged do not constitute 'fill material.'"

Third, the Corps violated NEPA when it determined Fola's mining would have an insignificant impact on the environment, they claim.

"Defendants (the three non-profits) argue that the Corps failed to take the necessary 'hard look' at the individual and cumulative effects caused by the mines, and therefore had 'no reasoned basis or substantial evidence' to support the Finding of No Significant Impact,'" Fola's complaint stated.

Fourth, the Corps did not prepare an environmental impact statement because they determined it was not required. The non-profits allege such an action was "arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law."

But Fola claims its permit was issued after and in response to the suit OVEC had filed in federal court.

The company took extra steps to ensure it addressed every issue raised by Judge Robert Chambers's March 2007 order in the ongoing litigation, according to the complaint.

In addition, the company reviewed its permit application after Chambers' order to ensure that all of the data and issues addressed had been submitted to the Corps.

The Corps also made sure it was in compliance with the order. It revised its review and assessment methodology to determine which streams required mitigation, the suit states.

The Corps is using different, more sophisticated tools at the Ike Fork site than they had used in previous permits, according to the complaint.

Fola claims its permit suffers from none of the defects the defendants claim in their suit.

In addition, Fola's mitigation plan is different than others the non-profits have challenged in the same suit, the complaint states.

"For instance, the Fola plan does not include in-stream enhancement, but instead proposes in-kind mitigation through stream creation at an adjacent site in the same watershed," the suit states. "This in-kind replacement of stream functions is exactly the type of mitigation Judge Chambers favored in his March 2007 ruling."

The coal company claims that if it is added to ongoing litigation, its ability to execute its business plan would be negatively affected.

Fola is seeking a declaration that the Section 404 permit it was issued is valid and was issued in compliance with the CWA, NEPA and APA.

It also is seeking permission to be allowed to operate and conduct activities authorized by the permit.

James S. Crockett Jr., Allyn G. Turner and Andrew B. McCallister of Spilman, Thomas & Battle in Charleston will be representing the company.

U.S. District Court case number: 2:08-1109