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Kentucky Mining Plan Given the Go-Ahead

CINCINNATI (CN) - A mining company received a permit to discharge fill material into Kentucky waterways after the sufficient environmental testing, the 6th Circuit ruled.

The Sierra Club and Kentuckians for the Commonwealth claimed that the testing by the Army Corps of Engineers did not meet federal guidelines under both the Clean Water Act and the National Environmental Policy Act (NEPA).

In October 2012, the two groups sued the corps, Lt. Gen. Thomas Bostick and Col. Luke Leonard, claiming the mitigation plan put forth for the mining operation did not adequately address public health concerns.

Leeco Inc., which intervened in the case, modified its mitigation plan to lessen pollution to local watersheds numerous times before the Corps granted it the proper permits. It also agreed to pay the Kentucky Department of Fish and Wildlife Resources more than $750,000 for any environmental effects related to the discharge of fill material into nearby streams and waterways.

A federal judge in Louisville dismissed the Sierra Club's complaint after finding that the government's scope of analysis for the project followed guidelines set forth by both the Clean Water Act and NEPA.

Affirming Friday, the 6th Circuit rejected claims that the corps violated NEPA by focusing their analysis only on damage to nearby waterways and failing to consider health concerns for the public at large.

"In discussing the public health consequences of granting the ... permit, the corps properly focused on the possible public health effects on discharges on the local water supply, as well as those caused by air pollution created by the machines that would be conducting permit-relevant site preparation and operation," Judge John Rogers wrote for a three-person panel.

Rather than entirely ignoring the public health effects of granting the permit, the corps "reasonably limited its scope of analysis only to those human health effects closely related to the discharge of fill or dredged material into jurisdictional stream beds," the ruling states.

"For example, the corps assessed the potential impact of the permit activities on the local water supply, and it concluded, in large part because the nearest municipal water supply intake was a significant distance from the operation, that 'it is not anticipated that this proposed project would affect the water supply,'" Rogers continued.

Dismissing allegations under the Clean Water Act, the panel determined that the corps correctly relied on the Eastern Kentucky Stream Assessment Protocol in making its decision to grant the permit and that "the use of this type of metric complies with regulations and is consistent with relatively recent changes in mitigation plan policy."

The panel also credited an estimate by the corps of an 80% success rate for the mitigation plan.

"The sources cited by the plaintiff do not persuasively demonstrate that the mitigation is likely to be unsuccessful, since the pessimistic assessments of mitigation they cite are from reports over ten years old, which came out before the corps's adoption of the functional 'watershed approach' in 2008," Rogers wrote. "As further assurance of mitigation success, the possibility of failure in the primary mitigation plan is prepared for in a contingency plan that would be triggered in the circumstance that Leeco does not accomplish the mitigation plan."

It is also noteworthy that the corps "granted a secondary permit related only to the filling of jurisdictional waters."

"The corps, in light of the entire project's approval under the more comprehensive Surface Mining Control and Reclamation Act, did not abuse its discretion in limiting the scope of its NEPA review to environmental consequences closely related to the filling of jurisdictional stream beds," Rogers wrote. "Where an existing state regulatory scheme already governs surface coal mining, NEPA does not require the corps to expand its review to the environmental consequences of the entire mining operation."

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