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This news story originally provided by The Charleston Gazette

Judge’s mining order ignored?

Permit suspension was aimed at mine sites not yet started

By Ken Ward Jr.
Staff Writer

A battle is brewing among environmental groups, the coal industry and regulators over enforcement of a July mountaintop removal ruling by U.S. District Judge Joseph R. Goodwin.

Last week, citizen groups sought federal inspections of several sites where they believe coal operators may be violating Goodwin’s decision.

The U.S. Army Corps of Engineers has asked the state Department of Environmental Protection — the only agency that has inspectors patrolling the sites regularly — for help. But so far, the Wise administration has declined to get involved.

The dispute could end up in Goodwin’s courtroom if it is not resolved soon.

“We’ve heard rumors that operators may be trying to circumvent the court’s order, but I would be surprised if either the Army Corps of Engineers or coal operators are not complying with Judge Goodwin’s order,” said Joe Lovett, a lawyer and executive director of the Appalachian Center for the Economy and the Environment.

In the case before Goodwin, Lovett’s organization and Trial Lawyers for Public Justice represented the Huntington-based Ohio Valley Environmental Coalition, Coal River Mountain Watch and the Natural Resources Defense Council.

On July 8, Goodwin ruled that the corps could no longer approve mining valley fills through a streamlined permit process meant only for activities that cause minor environmental damage.

Rather than these “general” or “nationwide” permits, Goodwin said, coal companies must go through more rigorous individual permit reviews when they propose to bury streams with waste dirt and rock.

The judge ordered the corps not to issue new Clean Water Act permits for valley fills without individual reviews.

As for 11 specific general corps permit authorizations challenged in the suit, Goodwin ordered the agency to suspend those for valley fills “on which construction has not commenced as of today, July 8, 2004.”

In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal seams. Leftover rock and dirt — the stuff that used to be the mountains — is shoved into nearby valleys, burying streams.

Last year, federal regulators issued a report that concluded that 1,200 miles of Appalachian streams have been buried or otherwise “directly impacted” by valley fills between 1992 and 2002. That 4 1/2-year study found that past, present and future mining in the region could destroy 1.4 million acres of forest, or 11.5 percent of the study area.

The Bush administration, which has made several moves to make it easier for companies to obtain mountaintop removal permits, has not issued a final version of the study.

Construction commenced

Questions surfaced about compliance with Goodwin’s ruling on July 30, when Massey Energy Co. President Don Blankenship was asked about the decision in a quarterly conference call with industry stock analysts.

Massey holds five of the 11 specific permits that were cited in the lawsuit. Those permits are for Massey subsidiaries Alex Energy, Elk Run Coal and Independence Coal.

While he complained that the judge’s decision “will further complicate and slow the already complicated permit process,” Blankenship also indicated that Massey didn’t expect to stop its operations.

“While what constitutes the commencing of construction has not yet been specifically defined, Massey has started some construction on all five permits by the date of the ruling,” Blankenship told the analysts.

Asked by one analyst for further details, Blankenship said, “It varies a little bit, but in all cases we are, at a minimum, building ponds and in some cases, we are dumping material into the fills.”

Four days after Goodwin issued his ruling, corps District Engineer William E. Bulen sent letters to Massey and other companies whose already-issued permits were cited in the decision.

In the letter, Bulen told companies that their permit authorizations were “suspended for valley fills and surface impoundments on which construction has not commenced as of” July 8.

The other companies who received the letters were Kingston Resources, Horizon Resources and Fola Coal Co.

In all, the permits halted by Goodwin would have buried or otherwise impacted 26.5 miles of West Virginia streams, according to government records filed with the court.

Chuck Minsker, a corps spokesman in Huntington, said that his agency is considering plans to inspect mining operations to confirm that they have complied with Goodwin’s order.

DEP asked to help

The corps, though, does not regularly inspect strip mines. So, the agency has sought help from DEP.

Ken Politan, an assistant chief for permitting at the DEP Division of Mining and Reclamation, said that the corps asked him for help from state inspectors during a July 20 meeting.

Politan said that he told corps officials that he wasn’t in charge of inspectors, and that they should talk to Joe Parker, DEP’s mining chief, or to Jeff McCormick, assistant chief for inspection and enforcement.

Last week, Politan said that he also forwarded the corps’ request to Parker and McCormick in an e-mail message.

Parker did not return phone calls Thursday and was not in his office Friday.

Perry McDaniel, chief of the DEP Office of Legal Services, said that it appears that environmentalists and the coal industry disagree about what constitutes starting construction of a fill under Goodwin’s ruling.

In some cases, McDaniel said, coal companies believe that they are exempt from the ruling if they started construction of sediment ponds downstream of the areas that will eventually become valley fills. Environmentalists, McDaniel said, apparently believe that starting the pond is not sufficient for a company to get around the injunction.

McDaniel said that he advised DEP officials that they should steer clear of that dispute.

“We prefer not to be caught in the middle,” McDaniel said. “At best, we would provide some basic information, and let Judge Goodwin and the parties to that lawsuit sort it out.”

One problem for environmentalists is that they do not have complete information about what was happening on the ground at each of the mine sites cited in Goodwin’s injunction. That’s the sort of information, environmentalists say, that DEP could easily provide.

On Friday, McCormick said that he’s not sure he wants his inspectors to even do that.

“We would have to discuss it internally and see if it was something we wanted to do or not,” McCormick said.

McCormick added that the in-person request to Politan is not sufficient for DEP to consider helping the corps. DEP wants something in writing, McCormick said.

“To my knowledge, the corps has not made a request,” McCormick said. “I have not been contacted. Unless we get something official, we would not consider that sort of request.”

Citizen inspection?

On Thursday, Vivian Stockman of the Ohio Valley Environmental Coalition asked the federal Office of Surface Mining to arrange a citizen inspection — allowed under federal strip mining law — of seven of the operations cited in Goodwin’s ruling.

In a letter to Roger Calhoun, director of the OSM field office in Charleston, Stockman said that she has “reason to believe” that Goodwin’s ruling is “not being followed by certain coal operators in West Virginia.”

“Because there is an immediate danger to the environment, I request an immediate inspection,” Stockman said.

Also last week, environmentalists asked the U.S. Environmental Protection Agency, which handles Clean Water Act enforcement, to look into the situation.

Officials from OSM and EPA could not be reached late Friday.

Earlier, Lovett on July 19 asked the judge to expand the ruling to cover six other permits that may not have started filling streams before the July 8 decision. Goodwin has not yet ruled on that request.

Two of those six permits are for Massey operations.

In court papers filed last week, Massey lawyers said that an expansion of Goodwin’s ruling would cause those operations “a disruption of their reasonably based investment expectations, a disruption to and possible loss of their employees, and a potential inability to meet contractual obligations.”

By contrast, Arch Coal Inc. President Steven Leer told industry analysts on July 26 that the Goodwin decision would not cause major problems for three of its permits specifically cited in the injunction.

“Arch has been anticipating that this could be a likely outcome for a number of years,” Leer said in a conference call.

Leer noted that Arch Coal is the only coal company that has gone through the process of obtaining individual permit authorization from the corps.

“We fell pretty comfortable with the individual permit process,” Leer said.

“It was a potential outcome that was likely,” he said. “We had planned for it.

“I think it will make it more difficult for people to get permits,” Leer added. “It will lengthen the time of the permit process, which is already lengthy. But we’ve built that in and made it part of our modus operandi.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

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