Click here for full text of appeal
For Immediate Release
July 8, 2000
Dysart Defenders appeals OVCC Valley Fill permit
Dysart Defenders appealed Ohio Valley Coal Company's permit D-0360-8 for a valley fill extension to dump coal waste that the company wants to dig from under Dysart Woods, a rare ancient forest owned by Ohio University. The appeal of the Ohio Division of Mines and Reclamations (ODMR) decision was filed July 7 with the Ohio Reclamation Commission.
The valley fill is just upstream from the endangered Eastern Hellbender, a foot-plus long salamander. It would dump 77,200 gallons of polluted water into Captina Creek, a rare exceptional warmwater habitat according to the Ohio Environmental Protection Agency. It is also a necessary permit for the company to mine under Dysart Woods, an endangered ecosystem.
Ohio Valley Coal Company was issued seven notices of violation by the Ohio EPA for illegal pollution and bulldozing just upstream of the endangered giant salamander, and the ODMR for bulldozing at least 20 acres before the permit was issued and before state regulators had had a chance to investigate the site for endangered species or other indicators that the site might be unsuitable ecologically for mining. While the company was given a $100,000 fine by the OEPA, they were also given permission to go ahead with the valley fill, despite the fact that regulators had not completed the site survey to see if endangered species had been present.
"This sets a terrible precedent for a company being allowed to bulldoze a site prior to regulators completing the environmental assessment, and then still getting the permits," said Dysart Defenders Coordinator Chad Kister. "This valley fill threatens the endangered Eastern Hellbender, a rare foot-long salamander and Captina Creek, a rare exceptional warmwater habitat and is a necessary permit for OVCC to mine under Dysart Woods, the last of .004 percent of remaining ancient forest in Ohio."
The existing coal waste dump is already violating the Clean Water Act. An EPA report of the affects of the existing pollution from Perkins run showed that acidity in Captina Creek increased by 5 and a half times from the pollution discharge from Perkins Run. This pollution cannot continue, let alone being allowed to increase by 77,200 gallons. Captina Creek has already shown an alarming decline from 37 species to 30 species from 1983 to 1996 according to OEPA documents. We need to return the creek to 37 species through increase protection, not more pollution.
The Ohio EPA found serious discrepancies with the OVCC-funded environmental studies used as the basis for granting the appeal, according to an internal memo (the full text of which is at www.dysartwoods.org under latest news, under the valley fill issue link). Mark Smith, the Ohio EPA permit manager for the OEPA permits for the same valley fill, found "there were obvious problems with how the sheets were filled out" by Ohio Valley Coal Company's consultants.
These sheets were description of the water and habitat quality
of the streams that OVCC illegally bulldozed. Before the OEPA and
ODNR could ground truth the sheets, as the same memo stated that they needed
to do, the area was illegally bulldozed. The full text of the appeal,
government documents and comments by citizens regarding the valley fill
is at www.dysartwoods.org.
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Appeal of the Ohio Valley Coal
Company Permit D-0360-8 passed by the Ohio Division of Mines and Reclamations
June 9, 2000
Appellant Chad Kister, Coordinator of Dysart Defenders
and Dysart Defenders
Appellee: Ohio Division of Mines and Reclamations
Filed with the Ohio Reclamation Commission in person July 7, 2000
Certificate of Service:
Ohio Division of Mines and Reclamations
1855 Fountain Square Court, Building H-3
Chad Kister, Coordinator, Dysart Defenders
Ohio Valley Coal Company
56854 Pleasant Ridge Road
Alledonia, Ohio 43902
Chad Kister, Coordinator, Dysart Defenders
Standing for appeal
Appellee Chad Kister has waded Captina Creek and seen the Valley Fill area through photos by the Ohio EPA and others both before and after the illegal actions of Ohio Valley Coal Company. Kister is the coordinator of Dysart Defenders, a non-profit organization dedicated to the preservation of the greater Dysart Woods ecosystem as well as Dysart Woods, which is among the last .004 percent of remaining ancient forest left in Ohio. Dysart Woods is among the most endangered ecosystems in the world according to a 1995 Biological Survey by the U.S. Department of Interior.
Kister would be directly harmed by the coal waste disposal site, as it would pollute Captina Creek, a rare refuge where Kister studies how streams in Ohio once were. Further, Kister is very concerned about the fate and well being of the state-endangered Eastern Hellbender, a foot-plus long salamander that was found just downstream of the site by the Ohio Division of Natural Resources. And Kister is concerned about the precedent this would set for allowing a company to completely destroy a site before the environmental assessment by state regulators was complete in an area rich in endangered species, and still get permission for the site. It is imperative that Ohio Valley Coal Company not be granted permit D-0360-8 to protect the rare exceptional warmwater habitat watershed that supports endangered species such as the Eastern Hellbender.
Kister has been to Captina Creek numerous times, and plans to go back for the rest of his life to study and seek spiritual refuge in one of the last clean and pristine streams left in Ohio (except for Ohio Valley Coal Company's pollution and destruction). Further, Kister is very concerned about all species that keep the delicate balance if life in harmony in Ohio on planet Earth. Larger animals are particularly critical to the ecology of a watershed. The Eastern Hellbender is a state endangered salamander that was found just downstream from this site.
Dysart Defenders is also concerned with the greater ecosystem around and including Dysart Woods. This site is near Dysart Woods, and would receive waste coal from under Dysart Woods if Ohio Valley Coal Company gets the permits it has applied for. Dysart Defenders and its members would be adversely affected by the proposed valley fill and D-0360-8. Kister also would be adversely affected by the permit and the valley fill.
Grounds for the appeal
Demonstrated Violation of Ohio Environmental Law
Ohio Valley Coal Company was recently issued a $100,000 dollar fine by the Ohio EPA for illegally discharging polluted water into Captina Creek, a rare exceptional warmwater habitat as designated by the Ohio EPA. The four illegal discharges of polluted water in violation of the Clean Water Act and the illegal work without proper permits by the Ohio EPA and the Ohio Division of Mines and Reclamations (ODMR) were just upstream of the State Endangered Eastern Hellbender, which is among the largest salamander left on planet Earth: more than a foot long.
The 77,200 gallons of polluted water that OVCC would discharge into Captina Creek is in violation of the Clean Water Act and the Surface Mine Control and Reclamation Act. Further, with the company's flagrant disregard for the law, what assurance does the public have that they will follow ODMR, OEPA and Army Corps of Engineers regulations?
OVCC was also issued notices of violation from the U.S. Army Corps. and the Ohio Department of Natural Resources and Division of Mines and Reclamations (now the Division of Mineral Management).
ODNR and ODMR failed to consider the Eastern Hellbender
The ODNR which is required to protect endangered species of the state, failed to consider the Eastern Hellbender, a state endangered species when it issue permit D-0360-8 to approve a coal waste disposal expansion just upstream of one of the only remaining populations left in Ohio.
An internal email by the Ohio Division of Natural Resources reported, "Natural Heritage maps and files for the proposed project were reviewed for records involving endangered, threatened or special interest species in the immediate project vicinity. We have one record downstream of this project area on the Armstrongs Mills Quad. The 1988 record for the Eastern Hellbender (Cryptobranchus alleganiensis), state endangered, is from Captina Creek. It was found near the eastemmost State Route 148 bridge (there are five State Route 145 bridges over Captina Creek on this quad!)."
An EPA report of the affects of the existing pollution from Perkins run showed that acidity in Captina Creek increased by 5 and a half times from the pollution discharge from Perkins Run. This pollution cannot continue. It is degrading Captina Creek and threatening our endangered salamander, the Eastern Hellbender.
Captina Creek has already shown an alarming decline from 37 species
to 30 species from 1983 to 1996 according to OEPA documents. We need
to return the creek to 37 species through increase protection, not more
OEPA admits pollution from valley fill would lower water quality of Perkins Run and Captina Creek
Waters in Ohio have withstood massive damage from past coal mining abuses in Southeat Ohio. Captina Creek is a rare clean stream on a degraded landscape. Captina Creek makes up the bulk of the 39.2 miles of exceptional warmwater habitat in the region of a total of 274.6 miles of stream according to the 1996 Ohio Water Resource Inventory (305b report). Clearly this rare exceptional water quality needs to be protected.
The Ohio EPA in its decision to grant to three permits associated with D-0360-8 to approve the coal waste facility expansion admitted that "Ohio EPA believes the discharges will result in a lowering of water quality of Perkins Run and subsequently Captina Creek."
The OEPA admits that the sediment load for the drainage system will be increased. This will clearly affect the endangered Eastern Hellbender, as salamanders are notoriously sensitive to sediment and acid mine drainage.
The OEPA report states that the stream affected, which may have contained endangered species such as the Eastern Hellbender would be entirely decimated. "The stream will no longer function as an stream and the pre-construction flow regime will not be reestablished within the disturbed segments."
OVCC began work illegally without the proper permits
The Ohio Valley Coal Company began work on the Valley Fill without the proper permits. The Ohio EPA Press Release about the fine that was imposed stated, "The civil penalty is a consequence of Ohio Valley Coal, prior to receiving the necessary Ohio EPA approvals, installing 870 linear feet of culvert in Perkins Run; installing a liner in the valley floor of Perkins Run; installing a leachate collection system; diverting and relocating the western tributary of Perkins Run; and installing a treatment pond for the leachate and runoff treatment. Also, in violation of its existing discharge permit, Ohio Valley Coal had one release of untreated coal slurry from the company's slurry pond in April 2000 and four unauthorized discharges from pond #10 between July 1999 and May 2000, resulting in discharges to Perkins Run and then to Captina Creek."
OVCC illegally destroyed creeks without the proper permits and without the full investigation by the ODNR and the OEPA. Before the Ohio EPA and the ODNR completed their investigation to see if OVCC permits D-0360-8 would violated state and federal environmental law, the coal company illegally bulldozed the area. According to the Ohio EPA, the permitted destruction would result "in the removal of 100% of the aquatic life habitat within these segments and the 100% removal of any potential wildlife habitat associated with their riparian corridor. Change in Chemical Water Quality: The proposed Preferred Alternative could have both short term and long term impacts on the surface water quality in the receiving streams, especially during the early stages of construction."
OEPA finds serious discrepancies with OVCC QHEI forms for Valley Fill
An Ohio EPA email found serious discrepancies with the Qualitative Habitat Evaluation Index (QHEI) reports file by Ohio Valley Coal Company. The memo states:
"Ohio Environmental Protection Agency Interoffice Communication
To: Duane Davis, 401 Coordinator
From: Marc Smith, DWS, MAS-EAU
Subject: Comments on the Perkins Run Coarse Coal Waste Disposal Facility 401 Application Materials.
As you probably have suspected we have no biological sampling data from the small streams that would be affected by the alternatives proposed for this project. The only sampling data that we have available are the QHEI forms that were completed by Jennifer Kleski of Bair, Goodie and Associates. My understanding is that she is a hydrogeologist by training. I'm not sure if she has taken one of Ed Rankin's QHEI training courses. I wouid appreciate it if you would check that out with your folks over there.
The reason that I'm raising the issue is that there were obvious problems with how the sheets were filled out. An example would be not checking boulders as a cover type when in the comments section of that metric was the statement that majority of cover boulders/cobbles. Another example would be shallows in slow water was checked but slow current velocity was not checked. The were several more comparable discrepancies scattered through the sheets. All of these discrepancies have the effect of underscoring the quality and therefore the potential of the streams to support aquatic life. I would strongly suggest a site visit to ground truth the habitat quality of these streams, especially in view of the proposal to totally eliminate them as streams.
Along the same lines since what is being proposed is a virtual elimination of a stream I do not see how we could approve the filling of this system without knowing what the existing quality and the existing use are. I would therefore recommend that either they hire a consultant to conduct that sampling this coming field season or you contact SEDO and determine whether or not they can conduct this sampling. Once we have a better understanding of the quality of this resource we can make an informed and better decision on how to proceed. Along the same lines statements are made in the report that are obviously inserted to minimize the quality of the stream.
One example is the "Note turbidity of the water. It has a milky apppearance (sic). However this milky appearance is also evident in photo 2&3 at the discharge of the Number 2 Dam, a slurry impoundment. The Ohio Valley Coal Company's activities appear to be responsible for this turbidity. Similarly comments are made about siltation and embeddedness (sic) particularly relating this to the stream flowing through spoil fill. Again these are as a result of activities by the applicant. Pre-application impact caused by an applicant should not be used to justify futher (sic) impact.
Another issue that needs to be resolved by folks higher up in
the hierarchy is: when is it permissible to
eliminate a water of the state? That appears to be what we are being asked to do. We need to know
what we are legally permitted to do. I would suggest getting Ric Queen involved in the review of this
project since it raises some issues outside the ordinary."
Ohio EPA officials found numerous errors with Ohio Valley Coal Company's "scientists" and found that all of these errors helped to underscore the quality of the stream. The EPA official, Marc Smith of the Division of Surface Water, said, "Ohio Valley Coal Company's activities appear to be responsible for this turbidity" found at the confluence of the coal companies existing coal waste facility. The company wants to greatly expand the facility. The EPA official suggest ground-truthing the coal company's data, but before they could complete that, OVCC bulldozed the site illegally. What were they trying to hide? What kind of a precedence would this be to allow the illegal bulldozing of a site to prevent EPA study, then to give the permits to the company to go ahead? Is this what will happen to all endangered species found on land that developers want to develop?
An Army Corps of Engineers letter April 29, 1998 called the West Tributary of Perkins Run an "undisturbed intermittent stream." Yet how do we now know if it had endangered species? It would set an extremely dangerous precedent to grant these permits to OVCC. It would encourage illegal destruction of endangered species and their habitat to avoid environmental laws. Ohio EPA is notoriously lax in their standards and enforcement of water quality laws, as can be seen by the US EPA's recent decision to oversee several OEPA cases.
Ohio Valley Coal Company permit D-0360-8 as passed by the Ohio Division of Mines and Reclamations violates the Clean Water Act, the Federal and Ohio Endangered Species Acts and the Strip Mine Control and Reclamation Act of 1977 and must be denied by the Ohio Reclamations Commission. Ohio Valley Coal Company must restore the West Tributary of Perkins Run and its drainage to its original condition as critical habitat for the Eastern Hellbender. The entire watershed must be considered for the preservation of this most unique and critical of species. A foot-plus long salamander is a showpiece that could attract tourism and a long-term sustainable economy rather than the boom and bust of the coal industry.
Appellants reserve the right to add claims pursuant to further
discovery as the appeal progresses.
Chad Kister, Coordinator, Dysart Defenders