This news story originally provided by The Charleston Gazette

Mining trial canceled while permits reviewed

By Ken Ward Jr.
Staff writer

HUNTINGTON — A federal judge on Wednesday canceled a trial scheduled for next week in the latest legal effort to curb mountaintop removal coal mining.

U.S. District Judge Robert C. Chambers acted on a motion by the federal Army Corps of Engineers, which last week suspended four mining permits at issue in the case.

In a court filing, corps lawyers said the agency decided its original permit approvals “merit further review and reconsideration.”

Corps lawyer Cynthia Morris declined Wednesday to elaborate or to say how long the review might take.

The corps has also not explained how the re-examination of the four permits in the lawsuit might affect its review of other coal industry permits currently in the agency pipeline.

Under its own regulations, the corps “may reevaluate the circumstances and conditions of any permit” and “initiate action to modify, suspend or revoke a permit as may be necessary by consideration of the public interest.”

Environmental group lawyer Joe Lovett said he is concerned the corps is simply trying to avoid having Chambers closely examine its permitting practices.

“I have no idea why the corps is doing this,” Lovett said. “Given the lack of information, the only conclusion I can draw is that the corps doesn’t want to have a trial.”

During a telephone hearing, Chambers said he wasn’t sure he could force Morris to explain just yet, but still had little choice but to cancel next week’s trial.

The corps argued that it might change the four permits, and that having a hearing before that happens would waste the court’s time. Coal industry lawyers agreed.

“I’m as curious as anybody about what they’re going to do and how they’re going to do it,” Chambers said. “But the legal fact is the entire permit is suspended.”

Chambers ordered the corps to report back on its review of the permits every 30 days. The judge said he expects those reports to contain more details than the corps revealed at Wednesday’s hearing.

In the case, the Ohio Valley Environmental Coalition and other groups hope to force the corps to begin conducting detailed studies — called environmental impact statements — every time the agency considers a new mining permit application.

The case, originally filed in September 2005, initially challenged just one permit, a Massey Energy operation proposed near historic Blair Mountain in Logan County.

Since then, environmental group lawyers have added attacks on three other Massey permits, two in Boone County and one along the Kanawha-Raleigh county line.

Together, the four permits propose to bury or otherwise damage more than 15 miles of streams with waste rock and dirt from valley fills, according to the corps’ suspension letter, sent Monday to Thomas Cook of Massey Coal Services in Charleston.

Though the lawsuit before Chambers specifically concerns only those permits, the outcome could set a broader policy for how the corps considers all mountaintop removal permits in Southern West Virginia.

The case focuses on the corps’ process for approving mountaintop removal valley fills through its traditional “individual” Clean Water Act permits.

In another case, pending before U.S. District Judge Joseph R. Goodwin in Charleston, environmental groups are trying again to block the corps from approving new mining operations through a streamlined permitting process.

Staff writer Ken Ward Jr.’s reporting on the coal industry is being supported by a fellowship from the Alicia Patterson Foundation.

To contact Ward, use e-mail or call 348-1702.