This news story originally provided by the The New York Times

7/10/04

Federal Judge Rejects Process for Approval of Mining

By FELICITY BARRINGER

Published: July 10, 2004

WASHINGTON, July 9 - A federal district judge in West Virginia struck down on Thursday an Army Corps of Engineers procedure that gives a blanket pre-clearance to Appalachian mining operations that dynamite away mountaintops and dump some of the refuse into streams.

The judge, Joseph R. Goodwin of Federal District Court in Charleston, ruled that the procedure, called a nationwide permit, improperly bypasses the requirement that the impact of mining on streams be determined "before, not after" such a permit is granted.

The judge added that the general permits allowed "an activity with the potential to have significant effects on the environment to be permitted without being subject to public notice or comment," in violation of the Clean Water Act.

He added that "a post hoc, case-by-case evaluation of minimal impact defeats" the purpose of the law.

Currently, 11 mining operations are under way under the general permit process that was just voided. Judge Goodwin suspended any operation that had not begun construction by Thursday, the day of his ruling.

Joseph M. Lovett, a lawyer for the plaintiffs - the Ohio Valley Environmental Coalition, Coal River Mountain Watch and the Natural Resources Defense Council - said Friday that the corps would have to approve the permits individually, with an eye to both the industry's needs and a scientific evaluation of damage to the streams where the refuse is deposited.

Science, Mr. Lovett said, "is uniformly damning for this kind of mining." The judge's decision, he said, "is going to open the process up." The nationwide permitting system, he said, "is just a rubber stamp."

Bill Raney, the president of the West Virginia Coal Association, said Friday that the decision was "disappointing, of course, because any decision like this complicates the procedures."

The nationwide permit struck down by Judge Goodwin was one of the regulatory controls that, environmentalists argued, were being undercut by current policies.

Another rule, issued not by the Army Corps of Engineers but by the Interior Department's Office of Surface Mining, restricts mining within 100 feet of a stream. In January, the Interior Department proposed changing the law, in part to make it more compatible with the law under which the corps operates.

If the proposal were adopted, filling valleys and covering streams would be permitted as long as mining companies showed they had minimized both waste and its environmental impact.

Blain Rethmeier, a spokesman for the Justice Department, said Friday that his office was studying the ruling and would have no immediate comment. "Obviously the administration believes in the importance of responsible coal mining to the economy and energy production, but is also committed to complying with all the environmental laws," Mr. Rethmeier said.

Mountaintop mining, which is less labor-intensive and more productive than earlier strip-mining operations, has come to dominate mining activity in central Appalachia. Mining companies are required to do substantial remediation, including relandscaping the hills they have cut away.

But opponents contend that the narrow valleys nearby are defaced and their streams effectively ruined by excess fill.

In his ruling, Judge Goodwin said that citizens did not have enough access to the decision-making process. Speaking of the environmental groups that brought the action, he wrote that the nationwide permit procedure "has abolished the plaintiffs' opportunity to object to proposals to discharge before they are authorized, and the nature of the corps' permitting process has made it difficult to object afterward."

The permit, he said, "is already impacting the waters of the United States," adding that a federal Fish and Wildlife Service estimate showed that hundreds of miles of streams in the Appalachian coal fields have been filled in accordance with the general permit.

Robert McLusky, the lawyer for the coal associations, said Friday that if the judge's ruling remained unchallenged, permits would "take more time and they cost more money to apply for."

On this point alone, his opposing counsel agreed. Mr. Lovett said Friday: "One of two things has to happen. Either the corps has to promulgate a new nationwide permit, or industry has to apply for new individual permits, which will also take a long time."