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This news story originally provided by The Charleston Gazette

Lawsuit would expand valley fill limits to Kentucky

By Ken Ward Jr.
Staff writer

Three environmental groups filed suit Thursday to expand new restrictions on mountaintop removal permits to the coalfields of Kentucky.

If successful, the lawsuit would stop new mining operations in Kentucky from being approved through a streamlined permit process meant for activities that cause little environmental harm.

Since last July, U.S. Army Corps of Engineers’ officials in West Virginia have been blocked from streamlined approval of new mountaintop removal valley fills.

In West Virginia, coal companies must go through detailed, individual permit reviews when they propose to bury streams with waste dirt and rock.

But in Kentucky, the corps continues to approve new valley fills through much less rigorous “general” or “nationwide” permit authorizations.

“We’re trying to make the law the same in both states,” said Jim Hecker, environmental enforcement director for Trial Lawyers for Public Justice.

Hecker is among the lawyers who filed the new suit Thursday in U.S. District Court for the Eastern District of Kentucky in Lexington. Judge Jennifer B. Coffman, a Clinton appointee, was assigned to hear the matter.

The case was filed on behalf of Kentucky Riverkeeper Inc., Kentuckians for the Commonwealth and the Kentucky Waterways Alliance.

The groups are also represented by Lexington lawyer Joe Childers, Joe Lovett of the Appalachian Center for the Economy and the Environment, and Brent Bowker and Amanda Moore of the Appalachian Citizens Law Center in Prestonsburg, Ky.

With the new suit, environmental groups are trying to block streamlined permitting of mountaintop removal jobs that would bury streams in the Cumberland, Kentucky, Big Sandy and Licking River watersheds.

“What’s illegal in West Virginia is just as illegal in Kentucky,” Lovett said.

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.

A 2003 draft study by federal regulators found 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.

“We need to slow down the mining so it’s done in a way that doesn’t hurt people or destroy the land,” said Patsy Carter, a Martin County, Ky., resident and member of Kentuckians for the Commonwealth.

Bill Caylor, president of the Kentucky Coal Association, was not in his office Thursday afternoon and could not be reached for comment.

Corps officials had no immediate comment on the new lawsuit.

Like the West Virginia case, the Kentucky suit questions the corps’ historic practice of approving valley fills through a Clean Water Act authorization called Nationwide Permit 21, or NWP21.

Under the law, such permits are supposed to be used only to approve categories of activities that, cumulatively, would have minimal environmental effects.

In a July 8 opinion, U.S. District Judge Joseph R. Goodwin in Charleston ruled that the corps had never concluded that valley fills caused only minimal adverse impacts.

Without such a finding, the judge said, the corps cannot use NWP 21 for any mining permits.

The Bush administration and several mining industry groups have appealed Goodwin’s ruling to the 4th U.S. Circuit Court of Appeals in Richmond, Va. The first legal briefs are due early next month, but no oral argument has yet been scheduled.

Previously, the 4th Circuit overturned two rulings that the late U.S. District Judge Charles H. Haden II issued to tighten restrictions on mountaintop removal.

In one of those cases, the 4th Circuit complained that Haden had issued an overly broad injunction against certain types of new mining permits in West Virginia and Kentucky.

So, in his ruling, Goodwin narrowed his injunction to permit applications in the southern judicial circuit of West Virginia.

Meanwhile, coal companies in Kentucky can continue to obtain valley permits through the streamlined, NWP 21 process.

In their new suit, environmental groups seek a ruling similar to Goodwin’s from a federal judge in Kentucky.

Lawyers argued in court papers that the corps never properly studied mountaintop removal’s impacts before approving NWP 21 and failed to put any limits on the length of stream that could be buried and qualify as “minimal” impact to the environment.

If the suit is successful, any industry appeal would go to a different court, the 6th U.S. Circuit Court of Appeals, based in Cincinnati.

In Kentucky, the corps has has approved more than 50 mining projects through streamlined Clean Water Act permits since March 2002, the lawsuit states.

Those projects would disturb more than 55 square miles and bury more than 35 miles of streams beneath nearly 200 valley fills, the suit states.

Another 27 permit applications are pending. But, corps records include estimated fill lengths for only a third of those permits. Those would bury about 9 miles of streams.

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

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