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This news story originally provided by
The
Charleston Gazette
By Ken Ward Jr.
Staff writer
A federal judge has declined to hold the U.S. Army Corps of
Engineers in contempt of a ruling meant to block streamlined
permitting of mountaintop removal coal mines.
On Wednesday, U.S. District Judge Joseph R. Goodwin rejected the
contempt motion filed by the Ohio Valley Environmental Coalition.
Goodwin said that he had been shown no evidence that the corps is
violating his July 8 order.
Late last week, environmental group lawyers Joe Lovett and Jim
Hecker had asked Goodwin to find the corps in contempt of his July 8
injunction.
In a nine-page court filing, lawyers for the coalition said that
a recent agency status report “shows that the corps is violating the
court’s injunction on a systematic basis.”
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.”
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.
On Tuesday, corps lawyers urged Goodwin to reject the
environmental group’s contempt motion.
Corps lawyers said that the environmentalists had cited only
fears about actions that the agency might take, not about specific
actions already taken.
In his ruling, Goodwin said that Lovett and Hecker had not
identified any specific violations.
“In the absence of ‘clear and convincing’ evidence indicating
that the corps has allowed construction of new valley fills and
surface impoundments that had not commenced as of July 8, 2004,
there are no grounds for a finding of civil contempt,” Goodwin
wrote.
Goodwin also praised the corps, saying that “rather than
disregarding the court’s orders,” the agency “has gone beyond its
required obligations in this case.”
“It has submitted a status report of its own accord,” the judge
said. “[And] in the status report, the corps has demonstrated to the
court that it has taken the injunction seriously, has applied a
rational approach on a case-by-case basis, and has acted in good
faith.”
In the ruling, Goodwin included only a minor statement that
appeared aimed at clarifying his original ruling.
“At all times, I have made it clear that mere preparatory
actions, in anticipation of construction, are not enough to qualify
for exemption from the injunction,” Goodwin wrote in the five-page
order. “Only projects in which substantial steps have been taken in
the construction process are exempt.”
To contact staff writer Ken Ward Jr., e-mail or call 348-1702.
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