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This news article originally provided by
The
Charleston Gazette
By Ken Ward Jr.
Staff writer
A federal judge on Friday rejected a Massey Energy plan to
continue mining on a mountaintop removal permit that was rescinded
last month.
U.S. District Judge Robert C. Chambers ruled that Massey’s
Aracoma Coal Co. could not legally clear, grub and mine on one of
four permits blocked by his March 23 decision.
Under Massey’s plan, the company’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, Massey
lawyer Bob 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.
In a three-page order, Chambers noted that citizen groups had
agreed to allow the two other fills to be started while the court
was hearing the lawsuit.
During a hearing Thursday, lawyers for the federal Army Corps of
Engineers said they had no further jurisdiction in the matter, once
the streams had been filled — and therefore could not stop Massey
from filling them even more.
Chambers disagreed.
“Clearly, the corps did not lose jurisdiction the moment the
streams were filled,” the judge wrote.
“The filling of these streams during the construction of the
valley fills represented an integral part of the overall project
that the corps reviewed during the permit process,” Chambers wrote.
Camp Branch was one of four corps’ permits for Massey that
Chambers blocked on March 23, when he ruled 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 an “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.
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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