This news story originally provided by the Lexington Herald-Leader

7/21/04

Environmental group seeks expansion of ban on coal permits

MARTHA BRYSON HODEL
Associated Press

CHARLESTON, W.Va. - Environmentalists have asked a federal judge to expand a ban on mining permits issued by the U.S. Army Corps of Engineers to include six more southern West Virginia coal mines.

The Ohio Valley Environmental Coalition filed its request late Monday with U.S. District Judge Joseph R. Goodwin, who on July 8 concluded that the corps had failed to comply with federal law when it approved the other mining applications under a streamlined process that requires only minimal review.

"The plain language of the Clean Water Act prohibits this procedure," Goodwin wrote.

His injunction initially applied to 11 operations. However, plaintiffs learned about plans for other operations only after they filed their complaint, according to a motion filed by lawyer Joe Lovett of the Appalachian Center for the Economy and the Environment, based in Lewisburg.

"Because the corps' (streamlined) permitting process was hidden from public view, plaintiffs were unable to learn about these authorizations until after the filing of the amended complaint," Lovett's motion said.

A spokesman for the Corps of Engineers in Huntington referred questions about the motion to the Department of Justice in Washington, D.C., which did not immediately return a telephone call seeking comment late Wednesday afternoon.

The six mining permits challenged in the latest filing include permits issued Feb. 2 to Consol of Kentucky Inc. for three mines in Mingo County; one issued May 24 to Road Fork Development Co.'s Rockhouse Branch Surface Mine in Logan County; one issued June 10 to Independence Coal Co.'s Glory Surface Mine in Boone County; and one issued June 29 to Alex Energy Inc. for its Robinson North Mine in Nicholas County.

"These six authorizations are illegal for the same reason that this Court found the eleven earlier authorizations to be illegal," the environmentalists' filing said.

"To be comprehensive, the court should also order the corps to suspend the other Nationwide Permit 21 authorizations that ... occurred prior to July 8," the filing said.

The lawsuit, filed last year, is the latest in a series of battles environmentalists have waged against the corps and the coal industry involving the federal Clean Water Act and how it has been used to permit the construction of valley fills at mountaintop removal coal mines.

Valley fills are used to dispose of the mining operation's excess rock and dirt. This so-called "spoil" is layered into nearby streambeds, often burying miles of headwaters.

OVEC sued the corps arguing that valley fill applications should undergo individual scrutiny because of the potential for significant environmental impact. The group argued that Congress gave the corps only two options for handling permits for valley fills and coal waste impoundments.

Under the streamlined process, known as Nationwide Permit 21, the corps set conditions and thresholds guaranteeing automatic approval for a permit application that meets those criteria. Under the individual permit option, the proposed mining operation must go through a detailed environmental analysis.

Goodwin ruled that the corps' decision to use the streamlined Nationwide 21 process instead of the more detailed process violated congressional intent when lawmakers passed the federal act.