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This news article originally provided by The Charleston Gazette

Lawyers argue over scope of mine ruling

By Ken Ward Jr.
Staff writer

HUNTINGTON — More mining permits will probably land in front of a federal judge, as lawyers for the coal industry and government regulators try to sort out the latest mountaintop removal court ruling.

Citizen group lawyers want U.S. District Judge Robert C. Chambers to add several permits to the case, a move that industry and Bush administration lawyers oppose.

During a hearing Thursday, Chambers indicated he is likely to expand the case if the federal Army Corps of Engineers does not reform its permit review process.

“If the corps continues to issue permits that are subject to the same kinds of flaws I have found, I am going to likely rule to let them amend their complaint,” Chambers told lawyers for the corps and the West Virginia Coal Association.

Lawyers for all sides gathered Thursday to discuss the implications of Chambers’ March 23 ruling in a case filed against the corps by the Ohio Valley Environmental Coalition and two other groups.

Chambers blocked four corps permits for Massey Energy mines, ruling that agency officials had not fully evaluated the potential environmental damage before approving the operations.

In an 89-page opinion, the judge said without a complete evaluation, the corps could not rightly conclude that none of the permits would cause significant damage to streams and forests.

Chambers cited an “alarming cumulative stream loss” to mining valley fills, and said the corps “does not explain how the cumulative destruction of headwater streams already affected by mining in these watersheds will not contribute to an adverse impact on aquatic resources.”

The judge declined to order the corps to perform a more detailed study, called and Environmental Impact Statement, on each and every mining permit. But he sent the four Massey permits back to the corps. The agency was ordered to conduct a more thorough analysis to determine if the impacts are more than minimal, the trigger for requiring an EIS.

In a key finding, Chambers also concluded that there is no scientific proof that the practice of mitigating mining damage by turning sediment ditches into man-made streams actually works.

Citizen groups are waiting for Chambers to rule on their request that he block a fifth Massey permit, and for the judge to decide whether two Arch Coal Inc. mines can be added to the pending lawsuit.

Also, the groups are considering asking Chambers to add to the case at least three other permits that the corps has recently issued.

Joe Lovett, a lawyer for the citizen groups, said the case is really about “a pattern and practice by the corps” of ignoring environmental laws when approving valley fills.

“This is a programmatic problem,” Lovett said. “The corps has to be held accountable for these things.”

Chambers responded that he had ruled so far only on the four Massey permits, and had not considered the suit a “programmatic” case. Injunctions to block more permits would be considered on the merits of those particular permits, the judge said.

Corps lawyer Cynthia J. Morris said agency officials do not want to see more permits added to the existing case.

Morris said that agency officials are still considering an appeal, but also have to continue ongoing permit reviews.

“Even today, they are continuing to process applications with the court’s ruling in mind,” Morris said.

James Crockett, a lawyer for the coal association, agreed that citizen groups should have to file new cases if they want to challenge other corps permit approvals.

“Each one of these permits should rise and fall on its own merits,” Crockett said.

Stephen Roady, another lawyer for the citizen groups, said his clients have had trouble finding out when the corps issues permits, making it difficult to challenge them in court before mining begins and the damage is done.

Morris, the corps’ lawyer, said it has been “burdensome” for agency officials to notify citizens whenever it issues a new permit. That practice will stop, she said, now that Chambers has issued his ruling.

Chambers suggested that the citizen groups could file a motion asking him to order the corps to provide such notice, if doing so is supported by federal law and regulations.

At Thursday’s hearing, Chambers did not immediately rule on a request by Lovett to block Massey from continuing mining at one of the four operations covered by the judge’s March 23 ruling.

Massey lawyer Bob McLusky said that Massey’s Camp Branch Mine in Logan County would not dump waste rock and dirt from the mining into a valley fill whose permit was blocked by the judge. Instead, McLusky said, the company would deposit the material in two other existing valley fills that are part of the same permit, but not subject to the judge’s order.

Morris said the corps did not object to the plan, because the streams where those two valley fills are have already been partially buried.

“The waters have been filled,” Morris said. “Those are no longer jurisdictional waters. The corps has no authority over them.”

Lovett said the plan allows Massey to evade the judge’s order, and lets the corps avoid considering the impact of the company’s altered mining plan.

“What we’re coming up with here is another ad hoc project that hasn’t really been permitted,” Lovett said.

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