This news story originally provided by The Charleston Gazette

Trial over mountaintop removal mine permits gets under way

By TIM HUBER / Associated Press

The first witness in a federal trial challenging the permitting process for four Massey Energy Co. mountaintop removal mines said Tuesday the U.S. Army Corps of Engineers relied on a faulty analysis of watershed damage in deciding not to pursue a more extensive environmental review.

Doug Pflugh, a research associate with Earthjustice in Denver, said the corps mistakenly used data that only should have been used for large areas to consider small areas, producing a flawed analysis.

The Ohio Valley Environmental Coalition and two other environmental groups are trying to force the corps to perform more extensive environmental reviews before granting valley fill permits for the mines. The permits, just one of several, allow Massey to fill nearby valleys with dirt, rocks and other material removed to expose coal seams.

The corps maintains that more extensive reviews weren't necessary for the permits involved in the suit. And the coal industry says that could slow or even stop surface mining in the region. Mountaintop removal mining, though controversial, is a considerably less expensive way to extract coal than underground mining.

The environmental groups want the court to require the corps to prepare environmental impact statements before issuing the permits.

Joe Lovett, an attorney for the environmental groups, said during opening arguments that the mines would destroy thousands of acres of forests, mountaintops, valleys, wildlife, streams and habitat.

"If the corps does not require an EIS for projects like these, what's an EIS for?" Lovett told U.S. District Judge Chuck Chambers, who is hearing the non-jury trial. "The U.S. Army Corps of Engineers is permanently destroying southern West Virginia with little more than a wink and a nod."

Lovett said other witnesses would testify about how surface mining increase runoff and flooding, damage to streams.
Corps attorney Cynthia Morris countered in her opening statement that the agency did not rubber stamp the permits. "In each case, the corps considered the relevant factors."

The four Massey mines are the Republic Energy Mine in Fayette County, the Camp Branch Mine in Logan County, and the Black Castle Mine and Laxare East Mine, both in Boone County.

Each permit was considered separately, each requires monitoring and each includes mitigation, Morris said. "The issue is whether the decisions made by the corps are reasonable and supported by the administrative record."

Bob McLusky, an attorney for Richmond, Va.-based Massey, the nation's fourth-largest coal producer by revenue, said the permits will never be good enough for the plaintiffs. "What they want is delay through the EIS and then a death sentence," he said.

Tuesday's witnesses also included Ohio Valley coalition representative Vivian Stockman, who talked about the impact of mountaintop removal mining on the environment and people, and Keith Eshleman, a professor at the University of Maryland Center for Environmental Science. Eshleman testified that surface mining can increase storm runoff, raising the risk of flooding while a mine is active and long after.

The trial is expected to last all week.