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This news article originally provided by
The
Charleston Gazette
Judge deals second blow to coal industry
Coal operators cannot evade the Clean Water Act by building
sediment-treatment ponds just downstream from strip mine valley
fills, a federal judge ruled Wednesday.
U.S. District Judge Robert C. Chambers essentially outlawed the
common coal industry practice of turning small stream segments
downstream from fills into waste treatment systems.
In a 26-page decision, Chambers concluded that the Clean Water
Act protects parts of streams where mine operators traditionally
build sediment-control ponds. The judge also said the law protects
small segments of streams between those ponds and the bottom of
valley fills.
The U.S. Army Corps of Engineers, Chambers declared, “has no
authority under the Clean Water Act to permit the discharge of
pollutants into these stream segments.”
Wednesday’s ruling is the second time in three months that
Chambers has dealt a major blow to the coal industry with a ruling
to more strictly regulate mountaintop removal mining.
In March, Chambers blocked four corps permits for Massey Energy
operations, ruling that agency officials had not fully evaluated the
potential environmental damage before approving the operations. That
ruling is being appealed.
The new ruling is part of the same case, a lawsuit brought
against the corps by the Ohio Valley Environmental Coalition, Coal
River Mountain Watch and the West Virginia Highlands Conservancy.
In mountaintop removal, coal operators blast off entire hilltops
to uncover valuable, low-sulfur coal reserves. Leftover rock and
dirt is dumped into nearby valleys, burying streams.
Generally, coal operators allow the water that discharges from
the toe of a valley fill to flow through a stream segment to a
sediment pond that is built inside a streambed farther downstream.
In the sediment pond, solids settle to the bottom and,
theoretically, clear water flows out into the stream.
State and federal regulators judge whether the mining operation
complies with its water pollution limits by testing the water that
flows out of the sediment ponds.
Environmental groups alleged that the stream segments between the
fills and the ponds — know by some regulators as “silt snakes” — are
“waters of the United States” subject to federal pollution limits.
“Compliance with water quality standards is therefore required
not only at the outlet of the sediment pond, but also upstream
starting at the toe of the valley fills,” the environmental group
lawsuit argued.
In his ruling, Chambers agreed.
Bill Raney, president of the West Virginia Coal Association, said
that the industry would appeal to the 4th U.S. Circuit Court of
Appeals in Richmond, Va.
“It’s absolutely astounding to me,” Raney said of Chambers’
ruling. “Here’s a judge outlawing a practice that has been in place
for almost four decades.”
Chambers noted that in-stream sediment ponds are a long-standing
industry practice. But, he found there was little legal basis for
the practice. The corps’ defense, Chambers said, “appears to be ...
a post hoc rationalization for the purposes of this litigation.”
Joe Lovett, a lawyer for the environmental groups, praised the
judge’s decision.
“The Clean Water Act has prohibited this kind of activity since
it was passed,” Lovett said. “The agency simply never enforced it.
“The mining industry has to change its practices to comply with
the Clean Water Act,” he said. “It’s an ingenious industry, and it
can find a way to do that.”
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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