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This news story originally provided by
The
Charleston Gazette
Mining fills continue, despite judge’s order
By Ken Ward Jr.
Staff writer
The U.S. Army Corps of Engineers is allowing coal operators to
begin new valley fills under a streamlined permit process, despite a
federal court order that blocked such fills.
Corps lawyers have decided that the fills can go forward if
companies have started other work — such as pond-building or site
preparation — at the same mining complex.
Last week, the corps explained its actions in a status report
filed with U.S. District Judge Joseph R. Goodwin.
In the report, the corps revealed that it is doing exactly what
environmental-group lawyers had warned months ago that it would.
Under the corps’ interpretation, a company that has a permit for
eight valley fills and has started site preparation work on one of
them could complete all eight fills and not violate Goodwin’s
ruling.
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 were 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 regional study area.
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 ordered the corps not to issue new Clean Water Act
permits for valley fills without individual reviews.
Goodwin ordered the agency to “suspend those authorizations for
valley fills and surface impoundments on which construction had not
commenced as of today, July 8, 2004.”
The Bush administration and the coal industry have appealed
Goodwin’s ruling to the 4th U.S. Circuit Court of Appeals in
Richmond, Va. No date for argument of the appeal has been scheduled,
a clerk said Thursday.
After Goodwin’s ruling, coal industry officials argued that the
order did not apply to sites where preparatory work — such as
building sediment ponds at the foot of valley fill sites — has
begun.
In August, lawyers for the Ohio Valley Environmental Coalition
asked Goodwin to clarify his ruling.
At the time, coalition lawyer Joe Lovett argued that federal and
state mining law makes it clear that activities such as pond
building do not constitute the start of fill construction.
“Conflating all of these activities twists the regulatory scheme
[and the English language] beyond the breaking point,” Lovett wrote
in court papers. “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.”
Goodwin declined to clarify his ruling.
In an Aug. 31 ruling, the judge said the corps “is entirely
capable of carrying out my unambiguous orders. Construction on
particular valley fills and surface impoundments had either begun by
July 8, 2004, or it had not.”
On Nov. 24, corps lawyers filed a 69-page report to update
Goodwin on their progress in enforcing his ruling.
The corps told the judge that agency officials had sought
progress reports and performed inspections at 73 mining sites that
could be subject to the ruling.
At 22 of those sites, the agency said, no construction had begun.
The corps ordered operators not to begin work at those sites until
they obtained individual permits.
At 15 sites, the corps said, operators had completed their work.
At one Massey site, specifically targeted by environmentalists,
work had begun. But, Goodwin specifically blocked that permit.
At 12 other sites, the corps said, agency officials “require
further information” before they determine if Goodwin’s ruling
applies.
In those cases, the corps said, companies might have started
fills before they received final approval from the West Virginia
Department of Environmental Protection. Corps officials are
coordinating with the DEP to determine what to do about those sites,
the corps told Goodwin.
The corps said that, at 23 other sites, companies had “commenced
construction in waters of the United States as of July 8, 2004.”
“The construction in jurisdictional waters consisted of
discharges of dredged or fill material to create sedimentation
ponds, roads, stream relocations or culverting, the placement of
drains for valley fills, and/or the placement of excess spoil
material in jurisdictional waters,” the corps said in its report.
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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