|
This news story originally provided by
The Daily Mail
A federal judge has been asked to step in and order proper
enforcement of his own ruling to block the streamlined permitting of
mountaintop removal valley fills.
On Friday, the Ohio Valley Environmental Coalition asked U.S.
District Judge Joseph R. Goodwin to hold the Army Corps of Engineers
in contempt of Goodwin’s July 8 ruling.
In a nine-page court filing, lawyers for the coalition said a
recent agency status report “shows that the corps is violating the
court’s injunction on a systematic basis.”
“The corps’ report makes it clear that its noncompliance is even
more serious than plaintiffs feared when they moved for
clarification in late August 2004,” wrote coalition lawyers Joe
Lovett and Jim Hecker. “The failure to comply with the injunction is
another demonstration of the corps contempt for the rule of law.”
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 of acres of forest, or 11.5 percent
of the regional study area.
In his July 8 ruling, Goodwin said 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.”
In an Aug. 31 ruling, Goodwin declined a request by the
environmentalists that he clarify his ruling to block such an
interpretation by the corps.
At the time, the judge said that 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.”
In a Nov. 24 status report filed with Goodwin, corps lawyers
revealed that they have decided that valley fills can go forward if
companies had started other work — such as pond-building or site
preparation — at the same mining complex on July 8.
“By using this standard for commencement, the corps has allowed
new valley fills to be constructed if the mine operator merely began
site preparation, built a sediment control pond, or dropped a clod
of dirt into a stream anywhere on the mine site for any reason prior
to July 8, 2004, even if the mine operator had not yet placed any
fill material within the footprint of the valley fill,” Lovett and
Hecker wrote in their Friday court filing.
“The plain meaning of the court’s injunction is that commencement
of construction is determined by construction of the valley fill or
impoundment itself, not some other activity such as site
preparation, or the construction of a sediment pond, road crossing
or culvert,” they wrote. “The only reasonable interpretation of the
court’s order is that valley fill construction begins when fill
material is placed in the footprint of the valley fill.”
Lovett and Hecker asked Goodwin to declare that the corps is in
contempt of court, and order the agency to block any valley fills
projects where the fill itself had not been started on July 8.
They also asked the judge to force the corps to submit, within
five days, a status report that lists specific information about the
operations the corps has inspected in response to Goodwin’s order.
They also asked the judge to fine the corps $10,000 for every day
that the agency does not comply with the order.
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.
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
|
