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This news story originally provided by
The
Charleston Gazette
By Ken Ward Jr.
Staff writer
Environmental group lawyers are wasting no time in seeking a
ruling in a lawsuit aimed at curbing mountaintop removal in
Kentucky.
The lawyers want to expand a West Virginia court order that
banned a streamlined process for obtaining new mining permits.
On Friday, lawyers for the Kentucky Riverkeeper and other groups
filed a motion for a preliminary injunction or summary judgment
ruling against the U.S. Army Corps of Engineers. They sought the
ruling from U.S. District Judge Jennifer B. Coffman in Lexington,
Ky.
“Kentucky’s streams should not suffer from the same type of
filling activities that are illegal in West Virginia,” the lawyers
wrote in court papers.
Since last July, corps officials in West Virginia have been
blocked from streamlining 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.
In mountaintop removal, coal operators blast off entire hilltops
to uncover valuable, low-sulfur coal seams. Leftover rock and dirt —
material 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 41/2-year
study found that past, present and future mining in the region could
destroy 1.4 million acres of forest, of 11.5 percent of the study
area.
Like the West Virginia case, the Kentucky lawsuit questions the
corps’ historic practice of approving valley fills through a Clean
Water Act authorization called Nationwide Permit 21, Or, NWP 21.
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 coal industry groups have
appealed Goodwin’s ruling to the 4th U.S. Circuit Court of Appeals
in Richmond, Va.
Legal briefs originally were due in early February, but
government and industry lawyers have sought delays at least three
times.
Briefs are now due Friday, but an oral argument has yet to be
scheduled.
Since Jan. 1, the corps has approved seven new mining projects in
West Virginia through the more thorough individual permits, agency
officials said Monday.
Over the past year, coal production in West Virginia is up about
7 percent, according to the U.S. Department of Energy.
In late January, the Riverkeeper, Kentuckians for the
Commonwealth and the Kentucky Waterways Alliance filed a lawsuit
similar to the West Virginia case.
The groups are represented by Lexington lawyer Joe Childers, Joe
Lovett of the Appalachian Center for the Economy and the
Environment, Jim Hecker of Trial Lawyers for Public Justice, and
Brent Bowker and Amanda Moore of the Appalachian Citizens Law
Center.
Since March 2002, the corps in Kentucky has issued NWP 21
authorizations for 54 coal mines, according to court records. Those
54 mines would strip 55 square miles of land.
They include 191 valley fills that would bury 35 miles of
streams.
More than 20 other requests for permit authorizations are
pending, environmental group lawyers said in court papers.
In their Friday filing, the lawyers asked Coffman to block any
new NWP 21 authorizations. They also asked the judge to suspend
corps approval for more than 50 other mining operations where valley
fills have not yet started.
“This injunction would not stop all coal mining,” the lawyers
wrote.
“Mining can continue, because existing valley fills will contain
space for placement of additional fill material,” they wrote. “As a
result, if mining companies want to build additional valley fills,
they will have time to apply to the corps for individual permits.”
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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