By Sean Hollowell
The forest is quiet around County Road 68 near Glouster, Ohio. The leaves have fallen from the trees, and there isn’t a car running for miles around. Every little sound carries through the woods. A woodpecker taps a tree once, twice, and then decides to search for a new place to eat.
Every once in a while something, a squirrel probably, rustles the leaves on the forest floor, but then the quiet sets in again. The only constant source of sound is the almost imperceptible gurgle of the stream which runs parallel to the road.
The water runs crystal clear, and collects in larger pools here and there, amid small ripples and thin pieces of ice. In these little pools it is easy to spot the tiny fish that dart around and under logs. You can clearly see their bodies glide soundlessly through the water.
This pristine stream is Johnson Run, a tributary of the Sunday Creek located in northern Athens County, and it is at the center of a proposal process that has been ongoing for years to open up a new surface coal mine on land adjacent to the stream in Athens County.
Under the Clean Water Act, all point sources of water pollution, like mines, are required to obtain a National Pollutant Discharge Elimination System (NPDES) permit. The permit gives permission to pollute waterways according to a predefined management plan. In Ohio, these permits are issued by the state EPA.
It was July 2016 when the Oxford Coal Company submitted an application to the Ohio EPA for a NPDES permit for a surface coal mine in Northern Athens County. The mine is located along County Road 68, also known as Johnson Run Road, in Trimble Township. The roughly 300-acre property is adjacent to the clear, quiet Johnson Run stream.
It is no secret that Appalachian Ohio has long been dealing with the toxic consequences of mining and resource extraction. Acid mine drainage has garnered national attention for turning streams bright orange and for poisoning people and wildlife alike.
Acid mine drainage occurs when freshwater flows into old mines, of which there are plenty in Appalachian Ohio, and comes into contact with the coal seam. The water picks up heavy metals and other toxic compounds, and becomes acidic before leaving the mine and rejoining a waterway.
Contaminated streams support little to no aquatic life and are far too toxic to be used as a water supply for local people.This is a problem that the organization Rural Action (RA) has been fighting against for decades. RA has installed treatment systems all over the area and worked to mitigate the negative effects of acid mine drainage for almost 30 years.
Michelle Shively, Sunday Creek Watershed coordinator for RA, has overseen much of this work herself and has witnessed firsthand the success of the watershed restoration programs. Shively explained what she considers to be one of her greatest successes as watershed coordinator.
“The latest sample of a section of the West Branch of Sunday Creek, just a few miles downstream of the Johnson Run site, revealed 18 native fish species,” she said. “Before our work began that area was completely dead.”
As Sunday Creek Watershed Coordinator, Shively has been involved in the Johnson Run permitting process from the very beginning, and she is an expert on the stream’s biological state. Shively emphasized the fact that Johnson Run is a pristine stream, almost completely untouched by the consequences of human development. She said that for Appalachian Ohio, waterways such as Johnson Run are “exceedingly rare.”
Shively remembers the first round of public hearings for the Johnson Run mine proposal in 2018. According to her, the original proposal was submitted by the Oxford coal company and it had old, outdated water quality data to classify the existing use of the stream.
“The permit information was not factually correct,” said Shively. She explained that the old data were not representative of the water quality in Johnson Run or the West Branch of Sunday Creek.
The Ohio EPA is beholden to Federal Antidegradation regulations, such as 40 CFR 131.12 which states that bodies of water must be returned to “existing use” standards after resource extraction ends. Existing use is a designation assigned by OEPA as a manner of establishing stream quality prior to polluting action. Therefore, according to the Federal Antidegradation laws, OEPA would be required to ensure that stream quality be restored to the existing use standard after mining finished at Johnson Run.
Although OEPA did not use the data that RA collected for over a decade in collaboration with state agencies, OEPA did order new biological assessments in the area to reassess the existing use of Johnson Run in 2018. These biological assessments found that Shively’s claim was correct: the quality of Johnson Run was higher than previously recognized.
At the time of the very first permit proposal in 2016, Oxford coal was a subsidiary of a much larger mineral extraction company, Westmoreland. The Ohio EPA reviewed Westmoreland-Oxford’s application, and in November of 2017, OEPA released a draft of the permit to the public. All NPDES permits are drafted and must be reviewed by OEPA before being approved. A couple public meetings were held in 2018, and it was in those meetings that Shively recalls arguing for the use of more current data.
However, later that year in October, Westmoreland filed for Chapter 11 bankruptcy. It appeared that the project was dead, as there was no longer any entity pursuing an NPDES permit.
Following the bankruptcy of Westmoreland, the former owner of Oxford Coal, Chuck Ungurean, repurchased the company. Ungurean had originally sold Oxford coal to Westmoreland in 2015.
In addition to buying back Oxford, Ungurean also purchased the Buckingham Coal company and a few mine properties. With these purchases, Ungurean formed his new company, CCU Coal and Construction, and in July of this year CCU resubmitted the permit application for a mine at Johnson Run. It is this most recent permit application that has been going through the review process at OEPA.
In addition to pushing for better water quality assessment, Shively has been very active in disseminating information about the proposal and hearings to the community.
“I knocked on doors,” said Shively,” I wanted to be sure that even if these folks weren’t coming to the meeting that their concerns were being heard.”
Shively emphasized that RA has a lengthy history of collaborating and achieving success with state agencies like the OEPA or the Ohio Department of Natural Resources. This collaborative strategy coupled with the fact that RA’s first priority being community development means that the organization is not in direct opposition to the mine.
Rather, according to Shively, RA has sought to inform the public at every step of the way and ensure that proper protections and antidegradation procedures are being followed.
The most recent hearing for the Johnson Run Mine proposal took place just last month, on Oct. 7, at the Burr Oak State Park Lodge.
The large room in the lower level of the Burr Oak Lodge buzzed with activity as people took their seats, facing a lone projector screen and podium in the front of the room. Nearly every seat was taken, and some opted to stand along the edges of the room to take in the presentation. Some held signs that simply read “SHAME” in big letters, expressing dissatisfaction with the proposal before the meeting even began.
The hearing, led by Erin Sherer of the OEPA Division of Surface Water, began with an informational session to give an overview of the project specifications. Sherer explained that the plan is to create five open pit mines on the property. Each pit will have its own treatment pond, where contaminated water will go before being discharged into Johnson Run. These pits will be opened one at a time, so that only one pit mine is ever in operation at once.
The open pits will double as contaminated water storage, in the case that the area floods and the treatment ponds do not have enough capacity. Sherer admitted that flooding in the area is significant, and that while she was originally uneasy about the flood contingencies, she “eventually got a good comfort level with it.”
Sherer then went on to discuss the established existing use of Johnson Run, and how that level of existing use, under federal law, would have to be maintained.
Rather unsurprisingly, many people find it problematic that the OEPA sets for themselves these existing use standards to which they will later be accountable for.
One of these people is Roxanne Groff, local activist with the Athens County Fracking Action Network and former Athens County Commissioner. It was Groff who passed out the “SHAME” signs at the door outside the hearing room.
Much like Michelle Shively, Groff has latched onto the fight for better water quality assessments. She argues that Johnson Run should be classified as a coldwater habitat, a distinction that would offer the stream greater protections than its current status as a warmwater habitat.
Coldwater streams, in general, hold more dissolved oxygen than warmwater streams do. The colder water temperatures and greater abundance of oxygen allow for many freshwater fish and invertebrate species to thrive, some of which are unable to survive in a warmwater stream.
The OEPA distinction between the two types of streams, however, is largely arbitrary, as there are no water standards that must be met to meet the classification. Rather, the stream is assigned a category based on biological survey of species present.
Groff has personally recorded seeing animal life that is indicative of coldwater ecosystems, “we saw this little red fish swimming about,” she said, the fish was later identified as the Southern Redbelly Dace.
Knowing these organisms were present in the stream, Groff was incensed when she found emails from OEPA biologists referring to Johnson Run as a coldwater habitat, a classification higher than the currently assigned warmwater use. “I’m reading these [emails] going, ‘it’s right here!’” said Groff. She claims that these emails suggest a deliberate choice to assign Johnson Run a lower existing use than it truly deserves.
Groff also adds that the ownership change of the mine is cause for serious concern. She explains that Chuck Ungurean, owner of CCU Coal and Construction, has a long history of violations with OEPA. Groff argues that Ungurean has proven himself to be impartial to federal regulation and should not be given another chance to ruin a pristine aquatic ecosystem. Ungurean did not respond to requests for comment.
Concerns regarding Ungurean’s problematic past were also raised by citizens at the hearing. One frustrated attendee asked Erin Sherer at what point a proposal would be rejected out of concern for the proper adherence to regulation.
“We rarely ever reject a proposal,” Sherer responded. “Proposals are typically accepted or sent back to the company for revision.”
The final item on the agenda was the submission of public comments. During this portion of the hearing, audience members could take the podium to officially submit comments on the draft permit to make their voices heard. An OEPA employee sat next to the podium, fingers flying over a keyboard as the words of the speakers were recorded in an official transcript. By law, OEPA is required to offer responses to all of the concerns officially submitted in a public document.
Although Michelle Shively and Roxanne Groff have very different approaches to the Johnson Run proposal process, the former seeking to work collaboratively with OEPA to ensure equity to communities and the latter openly opposing OEPA’s decisions and fighting to proper action to be taken, both agree that the Oct. 7 hearing was productive.
Both were especially pleased with all of the public comments that were recorded. Groff emphasized that area locals often feel disenfranchised with governmental processes like these, having had little agency with respect to land use decisions in the past.
“We speak out on their behalf, because they’re afraid,” Groff said.
The next steps in this ongoing process will be up to the OEPA. They must release their response to the October 7th public comments, and then it will be up to the agency to either approve the permit, or to send it back to CCU Coal and Construction to be revised once again.
“To be honest, I have no idea what’s going to happen,” Groff said.
She does hope that another public meeting will be held so that the public may continue to express their discomfort with the possible mine.
“Just remember, it’s ‘we the people,’” Groff added. “It’s all for ‘we the people.’”
This story was originally produced for the Fall 2019 Environmental and Science Journalism class taught by Dr. Bernhard Debatin. All photos are credited to the author unless otherwise noted.