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This news story originally provided by The Charleston Gazette
Judge asked to clarify valley fill
ruling
A federal judge should clarify his mountaintop removal ruling to
stop coal operators from illegally burying streams, lawyers for
citizen groups said in court papers filed Tuesday.
The Ohio Valley Environmental Coalition and other groups asked
U.S. District Judge Joseph R. Goodwin to define what it means for a
company to have “commenced construction” of a valley fill.
Joe Lovett, a lawyer for the groups, said that the U.S. Army
Corps of Engineers and other agencies are aware “that coal
operators may be acting unilaterally to fill streams in accordance
with their self-interested and improper interpretation of the
court’s order.”
Lovett said that the corps and its lawyers have refused to
provide citizens or the industry with an interpretation of the
ruling or with guidance for complying with it.
“Instead, the corps appears to be inspecting operations at a
very slow pace to determine what is happening at the operations,”
Lovett said in an eight-page legal motion. “We believe that even
these dilatory efforts would not be occurring without pressure from
plaintiffs.
“It is difficult to understand what use these inspections serve
in the absence of a clear interpretation of the order that the
inspections are presumably meant to enforce,” Lovett wrote.
Corps officials could not be reached for comment late Tuesday
afternoon. Agency officials had sent out letters to companies,
giving them brief description of Goodwin’s ruling. Corps officials
also had said that they planned to visit mine sites to determine if
the ruling was being followed.
Previously, the state Department of Environmental Protection
declined a corps request that it inspect mine sites to determine if
Goodwin’s ruling was being violated.
Perry McDaniel, chief of the DEP Office of Legal Services, said
that his agency did not want to get in the middle of a legal fight
over the ruling’s meaning.
Also, the U.S. Office of Surface Mining refused a request that it
do immediate inspections of several mine sites to determine if the
ruling was being violated.
Roger Calhoun, director of OSM’s Charleston field office, said
in a letter that the environmental groups had not provided
“adequate proof of an imminent danger to the public health and
safety or significant, imminent environmental harm by the mere
allegation that streams are being filled without a [Clean Water Act]
permit.”
In his July 8 ruling, Goodwin said 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 individual permit
reviews when they propose to bury streams with waste dirt and rock.
The judge said that ordered the corps not to issue new Clean
Water Act for valley fills without an individual reviews.
Goodwin ordered the agency to suspend those for valley fills
“on which construction has not commenced as of today, July 8,
2004.”
Since the ruling, though, coal industry officials have argued
that the order does not apply to sites where preparatory work —
such as building sediment ponds at the foot of valley fill sites —
has begun.
Specifically, Massey Energy President Don Blankenship — whose
company held five permits targeted by the original lawsuit — told
stock analysts on July 30 that Massey didn’t expect the ruling 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.”
In his Tuesday filing, Lovett cited federal strip mine rules and
previous corps guidance that he said shows that activities such as
pond construction or site grubbing do not amount to the start of
valley fill construction.
“Conflating all of these activities twists the regulatory
scheme (and the English language) beyond the breaking point,”
Lovett wrote. “All of these are separately defined activities;
grubbing and pond construction are just part of a long chain of
activities mining companies must accomplish before they may commence
construction of valley fills.”
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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