This news story originally provided by The Charleston Gazette

4/1/04

Forced land sale for mine debated in Supreme Court

By Ken Ward Jr.
STAFF WRITER

On Tuesday night, Leon Miller was the first in line to speak out at a federal government hearing on mountaintop removal.

Miller described the damage he’s seen as mining surrounded his family homeplace along the Mud River in Lincoln County.

“It’s been completely filled,” Miller said of Connelly Branch, a stream buried by an Arch Coal Inc. valley fill.

On Wednesday afternoon, Miller and six family members sat quietly in the audience at the state Supreme Court. For about an hour, justices debated whether Arch Coal could force Miller to sell that homeplace to make way for more mining.

“We swam in that river,” Miller said earlier. “Our kids and grandkids swam in that river, and we would like to see it stay that way.”

For 100 years, Miller’s wife’s family owned a 75-acre tract that borders the Mud. The family homeplace includes a farmhouse, built in 1920, several small barns and a garden.

John Caudill, a coal miner who was blinded in a mining accident in the 1930s, and his wife, Lydia Caudill, raised 10 children in the home.

Today, the family no longer lives there. But some of the heirs spend almost every weekend there.

Arch Coal wants to tear down the family’s ancestral home. It stands in the way of the St. Louis-based company’s plans to continue to expand its Hobet 21 mountaintop removal complex. Last year, Hobet 21 produced about 5.2 million tons of coal, making it among the largest surface mines in the state.

Under Hobet’s plans, “a valley fill and an impoundment pond would destroy and inundate the farmhouse and outbuildings and bury the immediate surrounding land under the valley fill.”

Over the last few years, Arch’s Ark Land Co. has bought out some of the Caudill heirs. Currently, the company owns a 67.5 percent interest in the property.

When Miller’s wife and six other heirs refused to sell, Ark Land went to court.

Lincoln Circuit Judge Jay M. Hoke ordered the property sold through a process called a “partition sale.” In January 2003, Ark Land bought it at an auction for $500,000.

Charleston lawyer John Barrett, who represents Miller and the other heirs, says that the court-ordered sale was illegal.

“This case is not a referendum on mountaintop removal,” Barrett told justices Wednesday. “It’s not about coal mining. It’s not about jobs. It’s a dispute between property owners.”

Under state property law, a judge can order land split, or partitioned, if various owners cannot agree on how the land should be used. Through partition orders, land can actually be split among owners. This is called an “in-kind” partition. Or, the land can be auctioned through a partition sale.

Generally, West Virginia law requires in-kind partitions — and prohibits court-ordered sales — if such a split can be done “conveniently,” and if a forced sale would prejudice the interests of the owners who don’t want to sell.

“There can be no greater prejudice to my clients than complete destruction and elimination of this property,” Barrett said.

Chief Justice Spike Maynard said he has always found the law that allows court-ordered land sales “a little offensive.”

“If I don’t want to sell my part of a piece of land, no one ought to be able to make me,” Maynard said.

Phil Melick, a Jackson Kelly lawyer representing Ark Land, said that the sale should be approved because mountaintop removal is “the highest and best use of the property.”

Justice Warren McGraw asked, “The highest and best use of the land is dumping?”

“It has become that,” Melick said. “That’s the reality. The use of land changes over time. The value of land changes over time.”

Melick said that the property could not be economically mined without the company owning all of it. Under an in-kind partition, Ark Land would get just its current two-thirds of the site.

If that happened, Melick said, the company would also lose money on the shares of the site it already bought from other heirs.

“You made a business deal in anticipation of prevailing in this case,” responded Justice Larry Starcher. “And if you don’t prevail, you just made a bad business deal.”

Starcher also said that Miller’s interest in the property was not necessarily economic.

Melick responded, “It has to be measured economically, or it can’t be measured at all.”

Maynard closed the hearing by adding, “If we’re going to live in this state, we have to have prosperity.

“We need to have people mining coal in Southern West Virginia, or we’re all going to be in North Carolina,” he said. “But we can’t go kicking people off their property to do it.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

This news story originally provided by AP and The Daily Mail

4/3/04

Bush returns to W.Va., not all pleased with his record

By JENNIFER BUNDY
Associated Press Writer

HUNTINGTON, W.Va. (AP) -- Winnie Fox stood in raw early April weather Friday to let President Bush know that the 84-year-old woman is not happy with his record in the White House.

"He's not producing jobs,'' Fox said while standing with a group of protesters 60 years her junior holding a sign that read "Jobs not War.''

"He's killing West Virginia.''

Bush made a 40-minute stop at Marshall University on Friday to discuss his efforts to fight terrorism, promote coal for energy independence and spark economic development through job training. His visit included casual interviews with educators and local residents who opened businesses or used job training to start new careers.

West Virginia is a battleground state for Bush and Democratic presidential candidate John Kerry. Bush narrowly won the 2-to-1 Democratic state in 2000, and West Virginia's five electoral votes were enough to secure his national election.

Bush and Kerry are tied among likely voters in West Virginia, according to a recent poll by the American Research Group of Manchester, N.H.

The president's seventh trip here came as the U.S. Labor Department released a report that the economy had added 308,000 new jobs last month, the most in four years.

Bush noted that West Virginia's unemployment rate had fallen by 1 percent since last July, to 5.4 percent in February. That figure was up slightly from the recent low of 5.2 percent in January.

Still, West Virginia has lost about 23,000 jobs since Bush took office.

"I think he's trying,'' said Sally Oxley, a Republican who owns a Huntington physical therapy business and who shared the stage with Bush on Friday. "But we need a lot more jobs. We need high-paying jobs in West Virginia.''

The Kerry campaign sought to hammer that point Friday by arranging a conference call for reporters with United Steelworkers of America International President Leo Gerard. Challenging Bush's track record in the Mountain State, Gerard cited the decline of the steel and chemical industries and the job losses and retiree suffering that have followed.

"In West Virginia, we have thousands of people that have lost their health care,'' Gerard said. "In many important sectors, West Virginia's economy is in erosion.''

Fox said she lost the health care coverage her late husband worked 25 years to earn when his former employer, International Nickel, was sold.

"He died thinking I was fixed,'' said Fox. "I'm fixed all right. They have taken my benefits.''

Kathy Lilly, a 38-year-old Republican, traveled to Huntington from her Winfield home to show her support for her party's leader. She blamed Democratic control for the loss of jobs in West Virginia.

"How many were lost before he was president?'' she asked.

Fellow Republican Monica Hatfield, 47, of Charleston, said Bush has done a good job, but added "he could do a little better, maybe'' for West Virginia.

To the small group of protesters standing in the cold and rain, Bush's focus on terrorism and troop deployments to Iraq and Afghanistan have shortchanged the nation.

"How can we create jobs when all the attention is spent on a country that is not our own,'' said Stephen Kester, 24, of Huntington.

This news story originally provided by The Lexington Herald-Leader

4/3/04

Bush makes W.Va. stop

MANY IN MOUNTAIN STATE UNHAPPY WITH ECONOMY, JOB CREATION

By Jennifer Bundy
ASSOCIATED PRESS

HUNTINGTON, W.Va. - Winnie Fox stood in raw early April weather yesterday to let President Bush know she is not happy with his record in the White House.

"He's not producing jobs," said Fox, 84, while standing with a group of protesters 60 years her junior holding a sign that read "Jobs not War."

"He's killing West Virginia."

Bush made a 40-minute stop at Marshall University yesterday to discuss his efforts to fight terrorism, promote coal for energy independence and spark economic development through job training at community colleges. His visit included casual interviews with five residents who are educators, students and who opened businesses or used job training to start new careers.

West Virginia is a battleground state for Bush and Democratic presidential candidate John Kerry. Bush narrowly won the 2-to-1 Democratic state in 2000, and West Virginia's five electoral votes were enough to secure his national election.

Bush and Kerry are tied among likely voters in West Virginia, according to a recent poll by the American Research Group of Manchester, N.H.

The president's seventh trip here came as the U.S. Labor Department released a report that the economy had added 308,000 new jobs last month, the most in four years.

Bush noted that West Virginia's unemployment rate had fallen by 1 percent since last July, to 5.4 percent in February. That figure was up slightly from the recent low of 5.2 percent in January.

Still, West Virginia has lost about 23,000 jobs since Bush took office.

"I think he's trying," said Sally Oxley, a Republican who owns a Huntington physical therapy business and who shared the stage with Bush yesterday. "But we need a lot more jobs. We need high-paying jobs in West Virginia."

The Kerry campaign sought to hammer that point yesterday by arranging a conference call for reporters with United Steelworkers of America International President Leo Gerard. Challenging Bush's track record in the Mountain State, Gerard cited the decline of the steel and chemical industries and the job losses and retiree suffering that have followed.

"In West Virginia, we have thousands of people that have lost their health care," Gerard said. "In many important sectors, West Virginia's economy is in erosion."

Fox said she lost the health care coverage her late husband worked 25 years to earn when his former employer, International Nickel, was sold.

"He died thinking I was fixed," said Fox. "I'm fixed all right. They have taken my benefits."

Kathy Lilly, 38, a Republican, traveled to Huntington from her Winfield home to show her support for her party's leader. She blamed Democratic control for the loss of jobs in West Virginia.

"How many were lost before he was president?" she asked.

Fellow Republican Monica Hatfield, 47, of Charleston, said Bush has done a good job, but added "he could do a little better, maybe," for West Virginia.

To the small group of protesters standing in the cold and rain, Bush's focus on terrorism and troop deployments to Iraq and Afghanistan have shortchanged the nation.

"How can we create jobs when all the attention is spent on a country that is not our own?" said Stephen Kesner, 24, of Huntington.

This news story originally provided by The Charleston Gazette

4/6/04

Judge blocks Massey permit

Full hearing is scheduled for stream fill

By Ken Ward Jr.
STAFF WRITER

A federal judge on Monday temporarily blocked a permit for a new Massey Energy Inc. preparation plant waste fill.

The move could kick into gear the latest round of courtroom battles over the burial of streams by the state’s coal industry.

U.S. District Judge Joseph R. Goodwin ordered the Army Corps of Engineers to suspend the Massey permit for 10 days.

Goodwin said he wanted the Nicholas County stream Massey proposed to bury to be spared, at least until he can hold a full hearing on the matter.

“The stream cannot be repaired once it’s filled in,” Goodwin told lawyers during a hearing in his chamber Monday afternoon.

He scheduled a further hearing for April 12 on the Ohio Valley Environmental Coalition’s request for a more lengthy injunction.

On Monday, the issue was a relatively small fill where Massey subsidiary Green Valley Coal Co. would bury about 430 feet of a stream with preparation plant waste.

Through their broader case, environmental group lawyers want to stop the burial of hundreds of miles of streams based on permits intended only for activities that cause “minimal” environmental harm.

In October, lawyers Joe Lovett, Jim Hecker and John Barrett sued the corps in another of a series of legal attacks on mountaintop removal mining.

They say that the agency improperly approves valley fills through “nationwide” or “general” permits. Instead, they say, coal operators should have to obtain individual permits.

Under the federal Clean Water Act, individual permits cover specific activities and require a detailed review of the project’s environmental impact.

Nationwide permits cover categories of similar activities. The corps spells out the general conditions that a particular category of activity should meet. Then, companies seek authorization for specific projects. If they promise to meet the general conditions, their projects are authorized with much less review than individual permits.

Nationwide permits are intended — and allowed — only for categories of activities that “will cause only minimal adverse effects when performed separately, and will have only minimal cumulative effects on the environment.”

Because mountaintop removal “will result in the destruction of hundreds of miles of streams, and hundreds of thousands of acres of forests, the adverse effects are necessarily more than minimal,” their complaint stated.

Still, the corps almost always approves mountaintop removal and other coal industry fills through a nationwide permit called Nationwide 21. Lovett and Hecker want that to stop.

Since the case started, lawyers have filed various preliminary motions. Coal industry groups sought to intervene. Along with the industry, the corps asked Goodwin to throw out the case.

On Monday, environmentalists sought an emergency ruling from Goodwin on the Green Valley permit.

In their initial lawsuit, Lovett and Hecker had included Green Valley’s Blue Branch Refuse Fill among a long list of waste disposal fills they were concerned about.

Green Valley hoped to get rid of its preparation plant waste by dumping the material into an unnamed tributary of Blue Branch. Blue Branch flows into Hominy Creek, a high-quality trout stream.

Before the state Surface Mine Board, the Hominy Creek Preservation Association is challenging state approval of the Green Valley proposal. A hearing is scheduled for Wednesday.

Later, the corps indicated that it would force Green Valley to obtain an individual permit for the Blue Branch fill.

But then, the corps on March 25 approved part of the Blue Branch proposal through a nationwide permit.

Under this approval, Green Valley could bury 431 feet of the Blue Branch tributary.

The state Department of Environmental Protection, which also approved the partial Green Valley proposal, said it would “allow additional operational area” for the company while the corps processes the larger permit.

In legal papers filed Monday, environmentalists alleged that the corps illegally split the filling into two permits to avoid including the smaller fill in the more thorough review of the total project.

They also told Goodwin that, in other parts of the country, various corps nationwide permits are allowed only for projects that would affect less than 300 linear feet of stream. In Appalachia, the coal industry is subject to no such clear limits, they told the judge.

“The corps may not continue to treat Appalachian streams and forests as though they are less important than those in the rest of the nation — especially since our forests are the most diverse and productive temperate hardwood forests in the world and our free-flowing streams hold the region’s future,” the environmental group lawyers wrote in a brief.

Bob McLusky, a lawyer for Green Valley, said that the company needs the smaller fill soon. Green Valley is running out of other places to put its preparation plant waste, McLusky said.

Without the permit, McLusky said, the company would shut down the plant and two deep mines “very soon.” Between 110 and 150 workers would be laid off, he said.

Goodwin agreed that the company was “in pretty dire straits” and needed the permit.

But, he said, that was no reason to allow the corps to evade “what is otherwise proper procedure” in its permit reviews.

“What I’m most concerned about is that the corps determined that this area deserved an individual review,” Goodwin told McLusky.

“They must have had a good reason,” the judge said. “Now, you rely on being able to pull out a discreet part.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

This news story originally provided by The Charleston Gazette

4/7/04

Judge Wants to Spare Nicholas County, W.Va., Stream from Coal Company's Waste

By Ken Ward Jr., 
The Charleston Gazette, W.Va. Knight Ridder/Tribune Business News

Apr. 6 - A federal judge on Monday temporarily blocked a permit for a new Massey Energy Inc. preparation plant waste fill.

The move could kick into gear the latest round of courtroom battles over the burial of streams by the state's coal industry.

U.S. District Judge Joseph R. Goodwin ordered the Army Corps of Engineers to suspend the Massey permit for 10 days.

Goodwin said he wanted the Nicholas County stream Massey proposed to bury to be spared, at least until he can hold a full hearing on the matter.

"The stream cannot be repaired once it's filled in," Goodwin told lawyers during a hearing in his chamber Monday afternoon.

He scheduled a further hearing for April 12 on the Ohio Valley Environmental Coalition's request for a more lengthy injunction.

On Monday, the issue was a relatively small fill where Massey subsidiary Green Valley Coal Co. would bury about 430 feet of a stream with preparation plant waste.

Through their broader case, environmental group lawyers want to stop the burial of hundreds of miles of streams based on permits intended only for activities that cause "minimal" environmental harm.

In October, lawyers Joe Lovett, Jim Hecker and John Barrett sued the corps in another of a series of legal attacks on mountaintop removal mining.

They say that the agency improperly approves valley fills through "nationwide" or "general" permits. Instead, they say, coal operators should have to obtain individual permits.

Under the federal Clean Water Act, individual permits cover specific activities and require a detailed review of the project's environmental impact.

Nationwide permits cover categories of similar activities. The corps spells out the general conditions that a particular category of activity should meet. Then, companies seek authorization for specific projects. If they promise to meet the general conditions, their projects are authorized with much less review than individual permits.

Nationwide permits are intended -- and allowed -- only for categories of activities that "will cause only minimal adverse effects when performed separately, and will have only minimal cumulative effects on the environment."

Because mountaintop removal "will result in the destruction of hundreds of miles of streams, and hundreds of thousands of acres of forests, the adverse effects are necessarily more than minimal," their complaint stated.

Still, the corps almost always approves mountaintop removal and other coal industry fills through a nationwide permit called Nationwide 21. Lovett and Hecker want that to stop.

Since the case started, lawyers have filed various preliminary motions. Coal industry groups sought to intervene. Along with the industry, the corps asked Goodwin to throw out the case.

On Monday, environmentalists sought an emergency ruling from Goodwin on the Green Valley permit.

In their initial lawsuit, Lovett and Hecker had included Green Valley's Blue Branch Refuse Fill among a long list of waste disposal fills they were concerned about.

Green Valley hoped to get rid of its preparation plant waste by dumping the material into an unnamed tributary of Blue Branch. Blue Branch flows into Hominy Creek, a high-quality trout stream.

Before the state Surface Mine Board, the Hominy Creek Preservation Association is challenging state approval of the Green Valley proposal. A hearing is scheduled for Wednesday.

Later, the corps indicated that it would force Green Valley to obtain an individual permit for the Blue Branch fill.

But then, the corps on March 25 approved part of the Blue Branch proposal through a nationwide permit.

Under this approval, Green Valley could bury 431 feet of the Blue Branch tributary.

The state Department of Environmental Protection, which also approved the partial Green Valley proposal, said it would "allow additional operational area" for the company while the corps processes the larger permit.

In legal papers filed Monday, environmentalists alleged that the corps illegally split the filling into two permits to avoid including the smaller fill in the more thorough review of the total project.

They also told Goodwin that, in other parts of the country, various corps nationwide permits are allowed only for projects that would affect less than 300 linear feet of stream. In Appalachia, the coal industry is subject to no such clear limits, they told the judge.

"The corps may not continue to treat Appalachian streams and forests as though they are less important than those in the rest of the nation -- especially since our forests are the most diverse and productive temperate hardwood forests in the world and our free-flowing streams hold the region's future," the environmental group lawyers wrote in a brief.

Bob McLusky, a lawyer for Green Valley, said that the company needs the smaller fill soon. Green Valley is running out of other places to put its preparation plant waste, McLusky said.

Without the permit, McLusky said, the company would shut down the plant and two deep mines "very soon." Between 110 and 150 workers would be laid off, he said.

Goodwin agreed that the company was "in pretty dire straits" and needed the permit.

But, he said, that was no reason to allow the corps to evade "what is otherwise proper procedure" in its permit reviews.

"What I'm most concerned about is that the corps determined that this area deserved an individual review," Goodwin told McLusky.

"They must have had a good reason," the judge said. "Now, you rely on being able to pull out a discreet part."

This news story originally provided by WVEC

4/7/04

Judge blocks Massey permit on Nicholas County valley fill

Associated Press

A federal judge has temporarily blocked a permit for a valley fill at a Massey Energy Inc. preparation plant in Nicholas County.

U.S. District Judge Joseph R. Goodwin on Monday ordered the U.S. Army Corps of Engineers to suspend the permit until he can hold a full hearing next week on the Ohio Valley Environmental Coalition's request for a more lengthy injunction.

At issue is a stream where Massey subsidiary Green Valley Coal Co. would bury preparation plant waste. Massey Energy is based in Richmond, Va.

"The stream cannot be repaired once it's filled in," Goodwin said.

Without the permit, the company would shut down the plant and two deep mines, resulting in the layoff of up to 150 workers, said Bob McLusky, a lawyer for Green Valley.

In October, Goodwin was assigned to hear the latest lawsuit filed by environmentalists opposed to the large-scale surface coal mining method known as mountaintop removal.

The federal lawsuit challenges the generalized process, known as a nationwide permit, that the corps uses to review and authorize filling streams with left over rock and dirt from nearby mining operations. Mine operators contend the fills are an essential part of surface mine operations, which must contend with large quantities of waste.

Environmentalists argue that each proposal for a valley fill should be scrutinized individually rather than issued under the nationwide permit program. They say that under the Clean Water Act, nationwide permits are appropriate only when the construction will involve only "minimal" harm to the environment.

Previous lawsuits by the organizations have targeted different aspects of mountaintop removal, which environmentalists say has resulted in the destruction of more than 1,000 miles of streambeds in West Virginia alone.

This news story originally provided by AP and The Daily Mail

4/23/04

Electronic voting debate: Can computers ever be trustworthy?

By RACHEL KONRAD
AP Technology Writer

SAN JOSE, Calif. (AP) -- A growing number of federal and state legislators are expressing doubts about the integrity of the ATM-like electronic voting machines that at least 50 million Americans will use to cast their ballots in November.

Computer scientists have long criticized the so-called touchscreen machines as not being much more reliable than home computers, which can crash, malfunction and fall prey to hackers and viruses.

Now, a series of failures and snafus in primaries across the nation has shaken confidence in the technology installed at thousands of precincts nationwide, including precincts in four counties in West Virginia. Despite reassurances from the machines' makers, at least 20 states have introduced legislation requiring a paper record of every vote cast.

On Thursday, a key California panel unanimously recommended banning a popular Diebold Inc. paperless touchscreen model -- a move that could force North Canton, Ohio-based Diebold and other manufacturers to overhaul their business practices nationwide. Secretary of State Kevin Shelley, who said Diebold glitches "jeopardized the outcome'' of the March 2 primary, has until April 30 to decide whether to decertify Diebold and possibly other touchscreen terminals in California.

The head of a newly created federal agency charged with overseeing electronic voting called Diebold's problems "deeply troubling.'' The bipartisan U.S. Election Assistance Commission, formed in January to develop technical standards for electronic voting, will conduct a May 5 public hearing in Washington, D.C.

"We wanted to jump into this issue in time to impact November's election,'' said agency director DeForest B. Soaries Jr. "There are so many troubling issues that have emerged surrounding electronic voting and so much money has been spent since 2000 on converting to electronic voting systems that it requires our attention -- particularly because many states assume the computer is the solution.''

Even a top Diebold executive acknowledged this week that the systems are not foolproof, as he apologized for primary-day failures and the fact that his company installed uncertified software in counties across California.

"We're not idiots, though we may act from time to time as not the smartest,'' Diebold President Robert J. Urosevich told California regulators investigating the company's performance.

Diebold wasn't just under seige in a Sacramento hearing room. Dozens of protesters also demonstrated Thursday at the company's annual shareholder meeting, many sporting T-shirts that read, "The Computer Ate My Vote.''

Although Diebold is the most embattled voting equipment company, computer scientists say paperless systems made by Sequoia Voting Systems Inc. and other competitors also expose elections to malicious attack, software glitches and mechanical errors that could delete or alter millions of ballots.

The scientists' concerns have moved from theoretical to real in recent months as hundreds of counties nationwide upgrade from punch card and lever systems to computers in hopes of avoiding a hanging chad debacle like the one that affected the outcome of the Florida 2000 presidential election.

Indiana discovered problems this week with equipment made by Election Systems & Software Inc., which apparently installed uncertified software in five counties without notifying the state's election commission.

In presidential primaries last month, modem problems delayed vote counts in Maryland, and a power surge made the wrong screens appear on at least half of San Diego County's touchscreens, preventing an unknown number of voters from casting ballots.

Because votes that only exist in electronic form can be altered or deleted, Oregon, New Hampshire and Illinois require paper ballots; and California, Missouri and Nevada will require paper backups on touchscreen terminals by 2006.

Secretaries of state in Washington and West Virginia are calling for paper trails, while Ohio is reconsidering the switch to new machines, according to the Washington-based Election Reform Information Project.

It's probably too late for anyone to switch from electronic voting systems before November. But many computing experts are trying to persuade counties to scrap the more than 100,000 touchscreens already installed -- and to overhaul how voting software is developed.

"The worst-case scenario is that, come November, we're going to have nostalgia for what happened in Florida, which at least had an appearance of an attempt to do the right thing with people trying to recount ballots,'' said Avi Rubin, a Johns Hopkins University computer expert, referring to the 2000 presidential election debacle. "We weren't certain of the voter's intention on a hanging chad ballot, but we're going to end up with a situation where we're not sure of any of the ballots if the system is paperless.''

The harshest e-voting critics say simply adding printers to touchscreens may not safeguard elections. They're urging companies to publish the voting software online, for all to see.

They said the transparency of so-called open source code would help engineers make hacker-proof software, and thereby restore voter confidence.

"Open source is the only way to build robust systems that people can believe in,'' said Ed Cherlin, a Silicon Valley engineer with the nonprofit Open Voting Consortium.

The consortium's prototype relies on familiar desktop PCs and produces paper versions of every ballot cast, which can be reviewed by voters at the polls and then stored in county lock boxes. The operating system is Linux -- not Microsoft Windows, which most voting terminals rely on.

"Electronic voting in its current form is like hiring a private company to count votes behind closed doors,'' said Stanford University computer science professor Dr. David Dill, who publishes a Web site called Verified Voting.

Big voting equipment companies share only pieces of their code with federal election workers and secretaries of state. The companies say citizens -- and the hundreds of county election officials who buy their equipment -- should trust that their voting systems are secure.

"Not to take away from the security folks who have a wealth of knowledge of technology, but most of them will admit they don't have a wealth of understanding for election procedures,'' said Diebold spokesman David Bear. "Federal and state governments have an understanding of the software and the election policy and procedures.''

But few people believe that any voting system will ever be 100 percent accurate. Problems similar to San Diego's on March 2 -- where 573 of 1,038 polling places failed to open on time because of computer malfunctions -- are apt to recur.

On the Net:
Open Voting Consortium
Open Source Initiative
Verified Voting

This news story originally provided by The Daily Mail

4/23/04

Judge halts continuous update of disputed permit

Ruling on appeal of preliminary injuction due on Monday

Brian Bowling
Daily Mail staff

Already swimming in a flood of papers connected to a mine permit dispute, a federal judge dammed the flow and told lawyers on all side to wrap up a hearing.

Near the end of a five-hour hearing Thursday on three environmental groups' appeal of a Green Valley Coal Co. refuse disposal permit, a company official revealed the company had submitted a new mitigation plan that day to the U.S. Army Corps of Engineers.

Joe Lovett, attorney for the environmental groups, suggested he should have time to review the new plan before continuing his questioning of the company official.

U.S. District Judge Joseph Goodwin said no.

Goodwin said everyone involved in the case has a responsibility to follow the law. After outlining the responsibility of the corps, coal company and environmental groups, Goodwin said his own responsibility was to rule in a timely fashion on the environmental groups' request for a preliminary injunction.

In particular, his job is to decide whether the corps' approval of Green Valley's permit follows the law. Consequently, the hearing shouldn't be prolonged to examine documents that weren't around when the corps approved the permit.

"I can only deal with the papers you have given me. That's my job," Goodwin said.

The judge said he plans to rule Monday on the preliminary injunction.

At issue in the case is Green Valley's plan to bury 431 feet of Blue Branch, a tributary of Hominy Creek, which is a naturally reproducing trout stream in Nicholas County. Green Valley, a Massey Energy Co. subsidiary, wants to fill part of the stream with refuse from its coal cleaning operation.

The company has also requested a larger permit that would bury the entire stream while diverting some of the water that now feeds the stream into a drainage ditch.

Under federal law, the larger permit is undergoing a lengthy individual site analysis. Running out of room at its current disposal site, Green Valley submitted the smaller permit about five months ago.

The corps approved the smaller permit under a process that allows for expedited reviews of permits with less than minimal impact on the environment.

The Ohio Valley Environmental Coalition, Coal River Mountain Watch and Natural Resources Defense Council contend the corps illegally approved the permit. Federal law prohibits coal companies from cutting a large permit into several small permits -- a tactic known as segmenting -- in order to avoid triggering the longer review process.

John Morgan, a Lexington, Ky., mining engineer, testified that the smaller permit clearly depends on the corps granting the larger permit to provide the permanent sediment controls required by federal law.

If the corps doesn't approve the larger permit, the smaller permit's sediment controls would only last about six months, he said.

Thomas Cook, environmental engineer for Nicholas Energy Co., another Massey subsidiary, said the drainage ditch proposed in the smaller permit meets all state and federal sediment control requirements. Cook, a former inspector for the state Department of Environmental Protection, was also the company official who announced Green Valley has submitted a new mitigation plan to the corps.

Mindy Yeager-Armstrong of Potesta & Associates testified that burying 431 feet of Blue Branch wouldn't affect the trout population in Hominy Creek.

"I don't see how it could have any effect at all on the downstream reaches," she said.

Under cross-examination, however, she agreed that covering that 431 feet would reduce the amount of food Blue Branch supplies to Hominy Creek.

"Those bugs will be gone, yes," she said.

Yeager-Armstrong said she hadn't looked at the rest of Blue Branch and couldn't say what impact the larger permit would have on Hominy Creek if the corps approves it.

Writer Brian Bowling can be reached at 348-4842.