TCWN LITIGATION PROGRAM: COAL MINING
BLACKSIDE DACE THREATENED BY COAL MINING POLLUTION
U.S. OFFICE OF SURFACE MINING & U.S. FISH & WILDLIFE SERVICE - ESA CITIZEN SUITS
On January 28, 2015 the U.S. District Court for the Eastern District of Tennessee issued a decision to allow this lawsuit to proceed against the federal Office of Surface Mining (OSM) and the U.S. Fish and Wildlife Service (USFWS). The decision resolves efforts by the agencies (Office of Surface Mining and U.S. Fish and Wildlife Service) to block the litigation. The court will next consider arguments going to the merits of the groups’ claims.
On May 16, 2013, TCWN and its partners, Defenders of Wildlife, Sierra Club, and Statewide Organizing for Community eMpowerment, filed a first of its kind lawsuit in federal district court in Nashville against the U.S. Fish and Wildlife Service and the U.S. Office of Surface Mining (OSM). The lawsuit alleges the agencies have failed to meet their obligations under the Endangered Species Act to protect the threatened blackside dace and the endangered Cumberland darter from the effects of high conductivity discharges from strip mines in Tennessee, including the Zeb Mountain coal mine and Davis Creek Mine 5. The same groups filed a similar suit related to the proposed Sterling and Strays Surface Mine 1 on May 5, 2015 (see below).
The best available science indicates that dace cannot maintain healthy, sustaining populations at instream conductivities above 240 microsiemens/centimeter (µS/cm). Most surface mines discharge wastewater well above this level, leading to instream conductivity in mining country that routinely exceeds 500 µS/cm. Numerous studies have documented a steep decline in blackside dace numbers, whose range is limited to portions of east Tennessee and Kentucky where strip mining is common. Locally, Blackside Dace are believed to have been extirpated from Straight Creek, where multiple strip mines have contributed to instream conductivity that often exceeds 1,000 µS/cm.
According to the Service, “current regulatory mechanisms have been inadequate to prevent” the adverse impacts of conductivity and the recovery potential for dace is “low.” Yet, current dace guidelines do not require numeric conductivity limits, and instead arbitrarily rely on the TDEC discharge permitting to protect water quality. Yet, these permits do not impose numeric conductivity limits and TDEC has taken the position that it is precluded from imposing limits to protect endangered species.
The lawsuit follows a notice letter sent on January 29, 2013, and seeks to have the federal agencies revise the current blackside dace guidance, develop darter guidance, vacate a 1996 biological opinion and authorization to “take” endangered species as applied to surface mines in Tennessee, and implement other measures to prevent extinction of these species. The groups filed their lawsuit in May 2013, and have briefed a motion to dismiss. If successful, the lawsuit could lead to better protection of native species from the impacts of coal mining.
NEW 1,090 ACRE STRIP MINE IN THE HEADWATERS OF VALLEY & TACKETT CREEKS, MIDDLESBORO MINING - STERLING AND STRAYS SURFACE MINE 1 (CLAIBORNE COUNTY)
On May 5, 2015, TCWN, Defenders of Wildlife, Sierra Club, and SOCM filed suit against OSM and FWS based on their 60-day notice of intent for their failure to adequately protect the federally-threatened blackside dace from the impact of high-conductivity discharges from the recently-permitted Sterling & Strays Surface Mine 1. The 1,090 acre mine in Claiborne County will discharge to Valley Creek, Tackett Creek, Spruce Lick Branch, Burrell Creek/Bennett Fork, and other streams via 36 outfalls. All of the streams drain to the Clear Fork of the Cumberland River, which is an important migration corridor for the federally threatened blackside dace. Tackett Creek & Bennett Fork are designated protection zones for the small fish species, which was also found in Spruce Lick Branch in March 2013. To see a map of the proposed mine, click here. Spruce Lick Branch, Burrell Creek, and the Clear Fork are designated as Exceptional Tennessee Waters because of the documented presence of blackside dace.
OSM issued the SMCRA permit for this mine on June 18, 2014. TDEC issued the ARAP on July 24, 2014 and the NPDES permit on August 18, 2014.
This is the third new strip mine proposed for the Clear Fork watershed within the last year, including the 1,496 acre Cooper Ridge strip mine downstream on Valley Creek and the 578-acre Clear Fork Surface Mine on Straight Creek.
MASSIVE COOPER RIDGE MINE WOULD STRIP MOUNTAINS ABOVE 2,000 FEET
KOPPER GLO, LLC (CLAIBORNE COUNTY)
Kopper Glo proposes to strip mine approximately 1,496 acres along Cooper Ridge, mostly at elevations above 2,000 feet, and to build as many as 25 sediment ponds. This would be among the largest strip mines in Tennessee. On March 18, 2013, TCWN, Defenders of Wildlife, Sierra Club, Statewide Organizing for Community eMpowerment, Appalachian Mountain Advocates, and Tennessee Citizens for Wilderness Planning submitted initial comments to OSM opposing the mine. In August 2015, TDEC issued a public notice regarding a proposed ARAP for this mine, but later confirmed it will hold a joint public hearing when it issues a draft NPDES permit.
CLEAR FORK MINE
KOPPER GLO MINING, LLC (CLAIBORNE COUNTY)
This new 578-acre strip mine on King Mountain above Clairfield, TN will discharge to Rock Creek, King Hollow, Straight Creek, and the Clear Fork of the Cumberland River, streams that are already heavily impacted by coal mining discharges. Straight Creek and the Clear Fork are important streams for blackside dace, a federally threatened species that is intolerant of mining pollutants. Both Straight Creek and the Clear Fork are designated as Exceptional Tennessee Waters. TCWN, SOCM, and the Sierra Club appealed the 2014 NPDES permit, and negotiated a settlement to modify the whole effluent toxicity limit to be protective of fish and aquatic life and to fully implement the Clear Fork sediment TMDL.
Abby Creek, Bonnie Swinford, Sierra Club
NEW 680-ACRE STRIP MINE PROPOSED NEAR FROZEN HEAD STATE PARK
CLEAR ENERGY – COAL CREEK SURFACE MINE 1 (ANDERSON COUNTY)
The Clear Energy Corporation proposes contour mining below the ridgelines of Patterson Mountain and Buffalo Mountain, strip mining around the circumference of Toddy Mountain just below its peak, and a permanent spoils disposal area, all at locations above 2,600 feet. These activities will leave permanent, visible, high elevation scars near popular outdoor recreation areas, including Frozen Head State Park and the Royal Blue Unit of the North Cumberland Wildlife Management Area. The new mine would discharge to Laurel Fork, which drains to the New River, home to the Cumberland elktoe, a federally endangered mussel species. In August 2013, TCWN sent initial comments to OSM opposing this mine. TCWN has requested a public hearing and a site visit, and continues to track the permitting process for this site.
NATIONAL COAL TO STOP SURFACE MINING IN TN
ZEB MOUNTAIN - PERMIT APPEAL AND CITIZEN SUIT (CAMPBELL & SCOTT COUNTIES)
At more than 2,000 acres, Zeb Mountain is the largest mountaintop removal mine in Tennessee, and has been the subject of extensive litigation and civil disobedience for more than a decade. Through a consent decree approved by U.S. District Court Judge Tom Varlan on September 11, 2013, National Coal, LLC has agreed to cease mining and complete reclamation at Zeb. National has also agreed to stop surface mining operations in Tennessee and to comply with its permits at Zeb and Mine 14 as it completes reclamation at both mines. Critically, National has also agreed to accept selenium limits at seven outfalls at Zeb. The settlement also includes a supplemental environmental project to enable Tennessee Parks and Greenways to acquire and/or protect land near Zeb Mountain for conservation purposes. This result came after multiple lawsuits and permit appeals, and was the result of a joint effort of the Sierra Club, SOCM, TCWN, Appalachian Mountain Advocates, and others.