This news story originally provided by The Charleston Daily Mail

7/9/04

Ruling likely to slow down permits

Mining advocates, foes debate impact of judge's decision

Brian Bowling
Daily Mail staff

Friday July 09, 2004

A supporter and opponent of mountaintop removal mining agreed a federal judge’s ruling would lengthen the time it takes to get permits, but disagreed on whether the extra time will help or hurt the state.

On Thursday, U.S. District Judge Joseph Goodwin ruled that the U.S. Army Corps of Engineers can no longer approve valley fill permits through a streamlined process. Instead, the federal agency has to subject the proposed valley fills to individual environmental analyses and public review before approving them.

The judge also overturned the corps’ approval of 11 permits.

Julia Bonds, of the Coal River Mountain Watch, said the ruling gives environmental and coalfield groups more time to analyze and challenge the permits.

“It slows it down. It gives us a chance to find other ways to fight this,” she said.

Chris Hamilton, vice president of the West Virginia Coal Association, said Goodwin’s ruling will immediately block some miners from going to work and further complicates the process coal companies have to wade through to do business.

“It will undoubtedly create a hardship for the mining companies, the working miners and their families,” he said.

Goodwin’s ruling did say that valley fills on the 11 permits could continue if they’re already under construction.

Bill Raney, president of the West Virginia Coal Association, said the affected coal companies are still analyzing how much the ruling will affect their operations. The industry hopes to avoid any layoffs.

“We’re going to try to do whatever is possible to avoid that,” he said.

While the industry hasn’t made a final decision yet, it will probably appeal the ruling, Raney said. Since the end of last year, rising coal prices have created significant opportunities for coal operations that can meet the higher demand for coal, he said.

Consequently, the industry’s main concern is to keep the permitting process as predictable as possible so West Virginia companies can take advantage of those opportunities.

“The decision comes at a terrifically bad time,” Raney said.

Known as a “general” or “nationwide” permit, the streamlined process allowed the corps to approve mine permits after a partial environmental analysis and without any public hearing.

Goodwin says in his ruling that the general permit is supposed to be reserved for activities that the corps can show — ahead of time — will have minimal environmental impact. With the mine permits, however, the corps wasn’t able to show this.

Consequently, each mine permit must undergo the full environmental analysis and public review required by the Clean Water Act, he said.

In mountaintop removal mining, a coal company uses explosives to loosen the surface of the mountain so the rock and dirt can be removed to allow equipment to reach the underlying coal seams.

While regulations require, with some exceptions, the rock and dirt to be placed back on the mountain, the process inevitably leaves some excess rock and dirt. Coal companies dispose of this excess in adjacent valley fills.

Environmental groups have launched several legal challenges to the process. Their main argument is that covering the heads of valleys with rock and dirt damages the streams, rivers and lakes that are fed by streams coming out of those upper valleys.

The groups also contend the blasting, dust and heavy machinery are ruining the quality of life for coalfield communities.

“The practice of mountaintop removal and valley fill mining is destroying West Virginia,” Bonds said. “I see the effects of mountaintop removal every day, and the taxpayers of West Virginia feel it every time we have flooding in the coalfields.”

In this challenge, the Ohio Valley Environmental Coalition, Coal River Mountain Watch and Natural Resources Defense Council sued the corps over its practice of approving the permits through a streamlined process that effectively keeps the public from finding out what the agency is doing until after the permits are approved.

Bonds said Goodwin’s ruling at least gives them a chance to challenge and perhaps minimize the effects of proposed mining operations before the corps approves them.

“We’re grateful, really, to have an honest judge that goes by the law. We think that gives us a chance,” she said.

The ruling, under the title Ohio Valley Environmental Coalition v. Bulen, is available on the Web at www.wvsd.uscourts.gov/district/opinions.

[or download the pdf here: OVEC vs Bulen]

Writer Brian Bowling can be reached at 348-4842.