Tuesday, June 18, 2002

Judge keeps mining permit ban

By Pam Ramsey
The Associated Press

        CHARLESTON, W.Va. — A federal judge refused Monday to lift an injunction barring the U.S. Army Corps of Engineers from issuing federal permits that allow streams to be buried under excess rock and dirt from mountaintop-removal coal mines.

        U.S. District Judge Charles Haden II said the corps' Huntington District cannot issue any more permits under Section 404 of the Clean Water Act “that have no primary purpose or use but the disposal of waste, except dredged spoil disposal.”

        Judge Haden said mountaintop removal mining “apparently constitutes the strongest example” of activities covered by the injunction, but it may not be the only one.

        “By the plain terms of the order, permits for all activities fitting this description are enjoined,” he wrote.

        Judge Haden's decision was in response to a request from the corps to clarify his May 8 ruling that ordered the agency to stop issuing the permits. Corps officials also had asked Judge Haden to stay that ruling while they appeal it.

        A coal industry spokeswoman said there would be 32,000 layoffs in Kentucky and West Virginia in the next five years if the May 8 ruling stands.

        “We're deeply disappointed by the direction of the decision. We had hoped the judge would stay his ruling so that the corps could continue to grant permits and keep people employed in the region,” said Carol Raulston with the National Mining Association in Washington, D.C.

        Corps officials could not be reached for comment Monday.

        Judge Haden rejected the corps' argument that the injunction is too broad, extreme and unreasonable.

        He said the goal of the Clean Water Act is to “restore and maintain the chemical, physical and biological integrity of the nation's waters.”

        “It would be unreasonable and in stark variance with (Clean Water Act) policy to allow the nation's waters to be filled and destroyed solely to dispose of waste,” he wrote.

        Judge Haden had ruled in October 1999 that dumping such wastes violated the Clean Water Act. The 4th U.S. Circuit Court of Appeals overturned that ruling, saying Judge Haden lacked jurisdiction because the underlying lawsuit involved a state agency.

        Monday's 51-page ruling and the earlier ruling stem from a lawsuit filed in February by Kentuckians for the Commonwealth Inc. The lawsuit was filed in West Virginia because the Huntington district office covers West Virginia and portions of Kentucky and Ohio.

        The citizens group charged the corps “has no legal authority under the Clean Water Act to issue permits to dispose of waste rock from surface coal mining activities in streams.”

        It asked Judge Haden to block a permit the corps had approved for Beechfork Processing Inc.'s mountaintop removal mine in Martin County, Ky.

        Beechfork's mine would create 27 valley fills and bury 6.3 miles of stream.

        About 100 permits are pending with the corps that the agency has said it cannot issue because of Judge Haden's ruling, Ms. Raulston said. “There have already been some announced layoffs in the region,” she said.

        A court document predicts 17,000 will be laid off in Kentucky. A West Virginia economic study predicts 15,000 people in that state will be laid off within the next five years because of the ruling, Ms. Raulston said.

        “This is a Kentucky case. We've gotten hit with the rim fire,” said Bill Raney, president of the West Virginia Mining Association.

        The ruling indicates there has been little recognition of the work the mining industry has done in the last three years to comply with other court orders involving mountaintop removal, including changes in the application progess and changes in mining methods, Raney said.

        Bill Caylor of the Kentucky Coal Association and Alex Macia, legal counsel for Gov. Bob Wise, said they had not read the decision.

        Lawyers for Kentuckians for the Commonwealth could not be reached for comment.

        Haden also rejected the corps' argument that proposed changes in federal rules that would remove restrictions on dumping excess rock and dirt from mountaintop mining into streams made the issue moot.

        The judge disagreed. He said the proposed rules were “contrary to the spirit and letter of the (Clean Water Act), inconsistent with the statutory scheme” and beyond the authority of the corps and the U.S. Environmental Protection Agency.

        Judge Haden said the injunction is necessary because the corps had “ignored its own regulations, the statute, an inter-agency agreement, and related statutes.”

        “When the longstanding practice was challenged, the agencies undertook to change the rules so streams could be filled as immense waste dumps if the disposal had the 'effect' of filling the waters of the United States,” he wrote.

        The injunction also is necessary to prevent irreparable environmental damage, Haden said.

        “The streams buried under valley fills are destroyed. Free flowing streams are difficult to reconstruct,” he wrote.


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