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This article originally provided by
The Charleston Gazette
Fola Coal may continue mining in interim
By Ken Ward Jr.
Staff writer
CHARLESTON, W.Va. -- A federal judge on Friday blocked a U.S.
Army Corps of Engineers permit for a Fola Coal Co. mountaintop
removal mine along the Clay-Nicholas County line.
But U.S. District Judge Robert C. Chambers also suspended parts of
his own preliminary injunction to allow Fola Coal to continue
producing coal until a full trial on the case can be held.
And in a 12-page opinion, Chambers suggested additional actions by
lawmakers or executive agencies are needed to resolve continuing
debates over mountaintop removal.
"I am certain that most citizens in West Virginia recognize both the
contribution of coal to our economy and the value of this state's
tremendous natural resources," Chambers wrote. "These interests are
not mutually exclusive, and achieving a balance which advances both
is the goal of the statutes implicated in this action.
"With proper legislative or executive guidance, it may be possible
to reach common ground in balancing these important values," the
judge wrote.
Chambers added that he suspended parts of his injunction against
Fola in the hope that "some degree of clarity" would be provided
soon by the 4th U.S. Circuit Court of Appeals "or, perhaps, a
separate branch of government."
At the 4th Circuit, a three-judge panel is considering an appeal of
a March 2007 decision by Chambers that the Corps of Engineers did
not properly consider the environmental impacts before issuing Clean
Water Act permits for mountaintop removal mines to bury streams.
During a hearing last week, Chambers was asked to issue a new
injunction to block Fola Coal's Ike Fork No. 1 and Ike Fork No. 2
surface mines. Fola, a CONSOL Energy subsidiary, wants to mine
nearly 10 million tons of coal from a 900-acre area in Lilly Fork of
Buffalo Creek, near the town of Gilboa. In the process, more than
five miles of streams would be buried beneath 10 valley fills.
Company officials proposed to offset this loss by restoring or
creating nearly five miles of streams on a separate reclaimed mine
site.
But Chambers found that environmental group lawyers "raised
substantial questions" about whether the corps' approval of the Fola
permit was "arbitrary and capricious" and whether the agency
followed its own public notice requirements.
"As there is no evidence of successful stream creation, it is
plausible that mitigation may never be completely successful," the
judge wrote. "In other words, while damage to existing streams is
certain, the mitigation of this damage is uncertain."
Chambers added, "While some may decry the loss of jobs for the
sake of a handful of valleys and streams, there is a real and
substantial public interest in maintaining the quality of natural
resources.
"Headwater streams such as those that may be buried pursuant to the
Ike Fork permits play a key role in keeping watersheds healthy," the
judge wrote. "These streams are an important part of the environment
and should not be permanently destroyed if the activity fails to
meet environmental standards.
"As this court is well aware, the streams and valleys of the Ike
Fork permits are not the only ones which may be lost beneath valley
fills," Chambers wrote.
Chambers concluded that if every valley fill proposal is not
"evaluated and considered appropriately," the result may be "an
environmental catastrophe, arrived at one small step at a time."
Fola officials had warned that they were running out of room to
mine, and would have to shut down the operation if Chambers issued
an injunction.
Gary Patterson, a company representative, testified that Fola
employs about 350 surface miners and another 45 underground miners,
all of whom depend on "the continued validity of the Ike Fork
permits," the judge wrote.
Fola is the largest employer in Clay County, and accounts for 65
percent of the county's tax base, the judge noted, citing testimony
from County Commissioner Jerry Linkinoggor.
"While environmental damage from the burial of streams is real and
imminent, the relationship between Fola Coal and Clay County is
unique," Chambers wrote. "Fola is the only mining operation in the
county, and as such is the foundation of the economy."
But Chambers accepted a suggestion from environmental group lawyers
that the judge suspend his injunction's application to two of the
company's valley fills so Fola would be able to continue operating
"well into 2009."
"The partial stay of this injunction alleviates most, if not all, of
Fola's economic harm in the near term," Chambers wrote. "The court
would expect to resolve the case on the merits and benefit from the
guidance of the Fourth Circuit by the time the substantial economic
harm would be felt by Fola."
Read Ken Ward Jr. at kw...@wvgazette.com or 348-1702.
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