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This news article originally provided by
The
Charleston Gazette
While one mountaintop removal court ruling is appealed, lawyers
for citizen groups and the industry set the stage on Wednesday for a
renewed battle over streamlined permitting of mining valley fills.
Lawyers for the Ohio Valley Environmental Coalition allege that
federal regulators have wrongly returned to the use of “nationwide”
or “general” permit approvals for valley fills.
During a morning hearing, Apogee Coal Co. agreed to temporarily
stop burying streams at a Logan County mine until U.S. District
Judge Joseph R. Goodwin can consider the matter.
Goodwin scheduled a full preliminary injunction hearing to start
May 31.
Citizen group lawyer Joe Lovett had asked Goodwin to block the
Apogee permit, which the federal Army Corps of Engineers approved in
early March through its streamlined permit process.
Goodwin was reluctant to do so, after hearing from a company
engineer that the streams involved were already buried by a 3- to
6-foot deep rock drainage system.
“The only thing that injunctive relief would accomplish at this
point would be to keep it from being buried deeper,” the judge said.
The case before Goodwin is part of a broader and more complicated
legal battle over the way the corps approves the burial of streams
by mountaintop removal mines.
Under the federal Clean Water Act, the corps can issue two types
of fill permits.
One is called a nationwide or general permit. The corps writes a
permit containing a set of general conditions meant to protect the
environment.
If companies submit an application that shows they will meet
those conditions, they receive an “authorization” under the general
permit, with little additional review by corps officials. Corps
officials are supposed to use general permits only for small
activities that cause little environmental damage.
The other corps permit is called an individual permit. These
involve a somewhat more detailed review by the corps, and are meant
for larger activities that can do more damage.
Over the last few years, environmental groups have challenged the
corps’ approval of valley fills through both of these permit
processes.
In one case, Ohio Valley Environmental Coalition lawyers argued
that the corps could not approve valley fills through general
permits. They argued that fills have greater than minimal impacts,
the legal test for being covered by general permits.
Three years ago, Goodwin agreed. In a July 2004 ruling, the judge
said the corps had never shown fills caused only minimal damage, and
blocked further use of Nationwide Permit 21, which the corps used
for mining fills.
In February 2006, the 4th U.S. Circuit Court of Appeals
overturned Goodwin’s decision.
Since March 2006, environmental groups have been trying to get
Goodwin to issue another ruling on issues he didn’t previously
decide and that weren’t overturned by the 4th Circuit.
At the same time, U.S. District Judge Robert C. Chambers was
hearing a challenge to corps’ approvals of individual permits for
mining valley fills.
In a March 23 decision, Chambers blocked four corps’ permits for
Massey Energy, ruling that the corps had not fully evaluated the
potential environmental damage before approving the operations.
Massey has said that it will appeal Chambers’ ruling to the 4th
Circuit.
This week, the court battle shifted back to the case pending
before Goodwin.
Originally, Apogee Coal, an affiliate of Magnum Coal, had sought
approval for its North Rum Surface Mine in Logan County through a
corps individual permit.
Michael Day, director of surface operations for Magnum Coal, said
the company went that route because of the litigation over
nationwide permits pending before Goodwin.
But, as Chambers neared a ruling in the individual permit case,
the company went back to the corps and asked for approval through
the nationwide permit, court records show.
In court briefs, Lovett and citizen group lawyer Jim Hecker
argued that the corps was wrong to consider and approve the proposal
through a nationwide permit.
Lovett and Hecker noted that the North Rum operation would bury a
longer section of streams than one of the individual permits that
Chambers blocked.
“The corps found that the cumulative effects are the loss of
nearly half of the Upper Spruce Fork watershed and more than a third
of its headwater streams,” Lovett and Hecker wrote. “The corps has
no reasoned explanation or scientific analysis to support its
conclusion that this amount of damage is minimal.”
Also, they argued that the timing of the switch in permit types
suggests “that the corps and the mining companies are alternating
use of individual and general permits based solely on the expediency
of whichever procedure gets the permit out the door more easily.”
Apogee officials warned that they might have to lay off miners if
their new permit is delayed, as they run out of coal to mine on an
adjacent operation.
More than a dozen Apogee workers, several wearing United Mine
Workers jackets or shirts, attended Wednesday morning’s hearing.
At least two Apogee workers, Ancil Bell Jr. and Ricky Workman,
submitted affidavits to Goodwin stating that they lost previous
mining jobs when U.S. District Judge Charles H. Haden in 1998
blocked a permit for Arch Coal Inc.’s Spruce No. 1 Mine near Blair,
Logan County.
“I was forced to move my family to North Carolina where I found
employment at a much reduced income,” Workman said in his affidavit.
“I’ve had to leave here once and I don’t want to leave here again.”
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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