UPDATE: Dr. David Bagley, the chairman of the Environmental Quality Council, overruled Ramaco lawyers’ objections and said the four area residents would be allowed to testify in the proceedings on the mine permit. On Friday, the Environmental Quality Council recessed without coming to a conclusion on the mine permit. The council will reconvene on June 7th in Cheyenne.
Lawyers for Ramaco Resources, the company behind a coal mine proposed in Sheridan County, are attempting to block neighbors from testifying on the mine’s permit.
Four people shouldn’t be allowed to testify, the lawyers wrote, because they aren’t parties in a contested hearing currently before the Environmental Quality Council. That body is meeting this week in Sheridan but has yet to decide whether to hear testimony from the four.
Shannon Anderson, the Powder River Basin Resource Council who is representing the neighbors, called the moves by Ramaco’s attorneys “absurd.”
“It’s just another attempt by Ramaco to keep citizens out of the process,” she wrote in an email to WyoFile. “This clearly shows the character — or lack thereof — of this company and I hope our local and state politicians think twice before providing any further support to Ramaco.”
Earlier this spring, the Wyoming Department of Environmental Quality, which is supervising the permit application, denied local landowners and other objectors’ requests for an informal conference where they could state their objections to the proposed mine. Objectors concerns would be addressed during the Environmental Quality Council hearing, the DEQ said.
Approval without testimony?
Now the coal company lawyers are attempting to block residents from testifying there as well. If they’re successful, Wyoming’s first new coal mine permit in decades could be approved without the public being allowed to stand up and voice their concerns officially to Ramaco or a state agency, although written comments will be part of the record.
Now on its fourth day of hearings on the mine permit, the EQC has yet to take witnesses from the PRBRC or the Fishers. The first three days were dedicated to witnesses from the DEQ and the mining company.
There are five parties in the hearing; Ramaco Resources’ subsidiary Brook Mining Company, the Wyoming DEQ, landowner group the Powder River Basin Resource Council, rival company Big Horn Coal, and a local landowner couple, the Fishers.
Anderson wants to call the four area residents as witnesses. Three of them live across the highway from the proposed coal mine. They’re worried about water tables drying up, mining explosions rattling the foundations of their homes, air pollution and haul trucks damaging roads, among other concerns. One is Anton Bocek, who was featured in an April WyoFile article.
The fourth person, Sheridan resident Gillian Malone, is objecting because she uses the area for recreation, she said. Malone is a member of the PRBRC’s board of directors.
Thus far, DEQ employees and Jeff Barron, a consulting engineer hired by Ramaco, have maintained during the hearing that most of the worries have been addressed in the permit application.
The Environmental Quality Council is a seven-member board appointed by the governor that hears appeals over environmental permitting issues. The board could decide Friday about the mine’s future. On Wednesday, council chairman Dr. David Bagley said they could extend the hearing to ensure the mine’s objectors are fully considered.
Lawyers from Holland & Hart represented the Brook Mine, the Ramaco LLC project. The lawyers also tried to exclude more than 60 exhibits filed in the hearing, including a series of letters filed in objection to the permit by other local landowners and PRBRC members. The council overruled those Ramaco objections, Anderson said.
The application process for the Brook Mine diverged from the normal permitting procedure for a new mine, though there hasn’t been a new coal mine in decades. Traditionally, the DEQ works with the company involved until the agency deems the application to be complete. The agency then fields and responds to public comment, and the permit is either approved or disapproved by the DEQ. Normally it’s at that point, if the DEQ’s decision was appealed, that the permit would go before the Environmental Quality Council as the Brook Mine permit is now.
In this case, the DEQ decided that in the face of all the objections, the EQC should decide if the mine permit application is complete and should be approved.
Parties range in goals, views
Opening statements by attorneys for the five parties showed each group’s reasons for participating. Andrew Kuhlman, an attorney with the Wyoming Attorney General’s office who was representing the DEQ, said the agency is arguing the permit application is complete. If the EQC finds shortcomings, it should ask for revisions, but the process should advance, he said.
Jeffrey Pope, a Holland & Hart attorney, compared the mine permit to Wyoming driver’s licenses.
“They tell us the person who has that license has passed the minimum qualification necessary to drive a car in the state of Wyoming,” he told the council. “Other than that, it really doesn’t tell us that much.”
Driver’s licenses do not, he said, tell us how well licensees will drive, what type of car they’ll drive or how they’ll perform in adverse conditions.
“It doesn’t have to,” he said, “because that’s not what a driver’s license is all about.”
Instead, he said, there are institutions like police and insurance companies that watch over drivers and correct or punish them for mistakes. The principle behind the license is the same as that behind the mine permit, he argued, and there will be agencies like the DEQ on hand to make sure mining proceeds without undue environmental harm.
Unlike with a driver’s license, however, the company has spent nearly four years working with the DEQ on the permit application, he said.
“We’re here today to talk about step one,” Pope said, referring to the proposed mine’s lifespan. “You’re going to hear evidence from some of the objectors talking about step 501.”
Pope also argued that many of the objectors were not familiar with Wyoming’s permitting laws or environmental regulations and thus wouldn’t know if the mine application was complete or not. “This is an attack on the quality of work that DEQ did,” he said.
Lynne Boomgaarden, who is representing Big Horn Coal for the law firm Crowley Fleck, said she would focus on what she characterized as a failure by Brook Mine to properly assess local hydrology. Without knowledge of how aquifers, coal seams and area waterways like the Tongue River or Slater Creek interact, Brook Mine could not know the impacts of the proposed mining, she said.
She also emphasized the difference between a permit application being “technically complete” and being approved.
The mining company’s lawyers, she said, have “illogically” characterized the mine permit “as a living, dynamic document that allows Brook to mine first and answer questions later.” Big Horn Coal, she said, wanted to send Brook Mining Company back to gather more data. Big Horn wasn’t contesting the new company’s right to mine, she said, but just ensuring its own resources in the area were adequately protected.
Intimidating process
Anderson said she would focus on making sure the members of her organization get their concerns addressed. “Ramaco and Brook Mine are going to try to paint our group as an activist group that’s opposed to coal no matter the merits,” she said. “They want you to believe that we don’t have good cause to be here today.”
Resource Council members are neighbors to the proposed mine, she said, and if the mine is developed they’ll be neighbors to Ramaco for the next 20 years or longer. The EQC hearing, which she described as “trial-like,” was the only opportunity for these citizens to voice their worries to the state, Anderson said.
“Although it may not look like it, and it certainly doesn’t feel like it to them,” she said, “in essence this is the only public comment period they have had on this proposed coal mine.”
She asked the council to give her witnesses — who sat behind her — some leeway. “This is an intimidating process,” she said.
The landowners had tried to find other avenues for discussion with Ramaco. “Unfortunately, as opposed to informally meeting with them to see if the company could address their concerns,” she said, “Ramaco has greeted these citizens with deposition subpoenas, invasive discovery requests, and subjected them to hours of questioning about their motives and technical knowledge.”
Finally, Jay Gilbertz, a Sheridan attorney who is representing the Fishers, a landowner couple opposed to the mine but not members of the PRBRC, spoke about the area’s history and natural beauty.
“This is not open rangeland like down in Gillette,” he said, where most of Wyoming’s large coal mines are located. “This is a very special and unique place.” The area of the Tongue River Valley where the mine is proposed is home to more than 100 landowners, according to testimony.
Gilbertz talked about various battles between Native American tribes, settlers and the U.S. army. An army unit under Gen. Patrick Connor fought a running battle for several days through the area as they retreated from Arapaho warriors led by Chief Black Bear, Gilbertz said. South of Sheridan, Sioux and Cheyenne warriors battled with woodcutters and the soldiers who protected them in what became known as the Wagon Box Fight. Other battles happened in the area too, Gilbertz said.
“Why did [Native people] fight so hard in this place when so many vast tracts of land had been taken away from them?” Gilbertz said. “It is because it is a very special place, it’s not just a place.”
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He talked about turkeys and nesting cranes, and a bald eagle that was nesting in the same tree as blue herons somewhere on his clients’ land. The Tongue River, which loops around the southern end of the proposed mine site, is a trout fishery, Gilbertz said. Big Horn Coal has filed objections saying that at certain points mining would come within 100 feet of the river bank.
Gilbertz also nodded to the history his clients and other residents have with the river valley. “It is a place where the people are tied to the land,” he said. “Where the people in this valley measure their water rights in terms longer than the state of Wyoming.”
Referencing Pope’s driver’s license analogy, Gilbertz said approving the permit would be like giving a license without performing a vision test on the applicant.
“I don’t need to take that vision test I see just fine,” he said, “and [then] we put them on the road. Don’t worry there’s cops on the road. Don’t worry I have insurance so all of this can be fixed later.
“There are some consequences of accidents which cannot be fixed,” he said.
It should be noted that given the limitations created by the formal process and citizens having to give comments through sworn testimony subject to cross-examination, the Resource Council had to be selective about what witnesses we called. There are certainly far more than four of our members that would have liked to give comments to DEQ on the proposed mine but there was not really an avenue for them to do so. Our organization had requested a meeting with DEQ earlier in 2016 to discuss concerns and ask questions but that meeting request was denied. At the time, DEQ said that citizens needed to wait until the official comment process.
Mining permits grant private use of public lands, and public resources for long periods of time, and permanently change the land resource. Wyoming’s lack of due diligence is obvious in too many areas, for citizens to trust that the State will do the right thing. When State budgets get tight, the long knives come out.
For example:
1. The State did not insist on bonding for coalbed methane, coal mining, or other mineral production companies known to be in financial distress.
2. The mapping of former production areas, including burned out areas, is largely unknown. I’ve read remarkable studies about how pollution plumes flowed downhill to the river, but never entered. A few weeks after the company shutdown the pumps holding back the pressure, the sheen of pollutants was in evidence. No prosecution occurred. The statutes of limitations privatize profits, and socialize costs.
3. The Tongue River Valley is very special. Canoeing the Tongue River is a favorite activity for me, because of the aesthetics. Wildlife watching, fishing, and basking in the beauty of the Tongue River Valley, are special fruits of my pursuit of happiness.
Once upon a time, Peabody had a regional office in Sheridan. They went back to St. Louis, when their economic interests flagged. Later they established another regional office in Gillette for the PRB boom, and moved out of Wyoming again when they again lost interest.
The people living here have economic interests, but also aesthetic interests, family interests, and spiritual needs. Those values are impossible to put on a spreadsheet, but they are real, and they don’t move back to HQ, when the job is done.
Legal standing for aesthetics was established near my parent’s home. The Hudson River Fishermen’s Association v. FEC involved a pumped water storage project on Storm King Mt.
Shutting out people who have a vital interest goes well beyond contracts, and spreadsheets. Standing has been recognized by the US Courts for many years.
I like coal, but I don’t care for the attitude of Ramaco nor what I’ve read recently about the Wyoming EQC, which is under a lot of pressure to push things forward. Hard times in Wyoming tempt some regulator folks to try for short-cuts. Those of us who have seen the outcomes several times, knew that full participation is required of citizens, before the permits are granted.