This news story originally provided by The Register Herald

August 24, 2004

Environmentalists say valley fill order is not being obeyed

MARTHA BRYSON HODEL

Associated Press

HUNTINGTON, W.Va. - Environmentalists asked a federal judge on Tuesday to clarify his ruling barring the use of valley fills for disposal of mining waste, saying the coal industry and regulatory agencies are not complying with his order.

The U.S. Army Corps of Engineers, defendant in the case, has refused to offer guidance to the mining industry on how the order should be applied, lawyers for the Ohio Valley Environmental Coalition said in a motion filed in federal court in Huntington.

"The refusal of the agencies to provide guidance to the industry, coupled with the industry's willful misreading of the order, have created a vacuum of authority that allows operators to proceed to fill streams with impunity," the filing said.

Blaine Rethmeier, a spokesman for the Justice Department in Washington, D.C., said the agency had not yet reviewed the filing and could not comment.

Rethmeier said the agency has not yet decided whether to appeal U.S. District Judge Joseph R. Goodwin's ruling that the corps should not be using a streamlined permitting process to approve mountaintop removal projects that include valley fills.

Mountaintop removal is a high-efficiency surface mining technique designed to recover 100 percent of the coal. The rock and dirt above and between coal seams is blasted away, then disposed of in nearby streambeds, leaving a finished landscape that is flat or gently rolling rather than the steep mountains and valleys that existed before mining. The disposal sites are known as valley fills.

In an order issued Aug. 13, Goodwin ordered the corps to suspend authorization for all valley fills on which construction had not begun as of July 8, the date his original order was handed down.

In Tuesday's filing, lawyer Joe Lovett of the Appalachian Center for the Economy and the Environment alleged that "some operators are willfully misconstruing the court's order" and that regulatory agencies have done nothing to stop them.

According to Lovett, some mine operators are asserting that they are exempt from the order because they began some preliminary work before July 8, such as timbering such as timbering and grubbing to begin work on sediment ponds.

"Only an intentional misinterpretation of the words 'commence construction' could be read to include taking the preparatory steps prior to commencing construction.

"Unlike valley fills, sedimentation ponds and other siltation structures are small, temporary structures that are constructed before surface mining activity begins and are typically removed at the end of mining," Lovett said.

The process known as grubbing involves the removal of vegetation and root masses from an area before actual construction begins and cannot be construed as the start of construction, the filing said.

"In fact, grubbing does not even include the placement of fill in waters of the United States and does not require a ... permit. Although grubbing is harmful to the environment, its impacts are neither permanent nor as severe as the devastating environmental impacts of burying the entire valley beneath millions of tons of mining waste," the filing said.

The group is asking the court to clarify that commencing construction of a valley fill includes only "discharging fill material into the footprint of the fill."