This news story originally provided by The Charleston Gazette

August 27, 2004

Corps mum on mine permit ruling

By Ken Ward Jr.
Staff writer

On Thursday, coal industry officials gathered in a hotel conference room to learn how they can obtain Clean Water Act permits from the U.S. Army Corps of Engineers.

Corps officials billed the special workshop as a chance for them to provide an overview of permitting requirements.

But the corps refused to explain how it plans to interpret a new federal court ruling that restricts its permit authority.

“I’m not sure with the current thing going on if I ought to answer that,” said Mark Taylor, a permitting section chief for the corps Huntington District office.

On Tuesday, the Ohio Valley Environmental Coalition alleged in court papers that the corps was allowing coal operators to violate the July 8 ruling by U.S. District Judge Joseph R. Goodwin.

Joe Lovett, a lawyer for the coalition, asked Goodwin to clarify his ruling because “coal operators may be acting unilaterally to fill streams in accordance with their self-interested and improper interpretation of the court’s order.”

In his ruling, Goodwin said that the corps could no longer approve mining valley fills through a streamlined permit process meant only for activities that cause minor environmental damage.

Rather than these “general” or “nationwide” permits, Goodwin said, coal companies must go through individual permit reviews when they propose to bury streams with waste dirt and rock.

The judge ordered the corps not to issue new Clean Water Act for valley fills in Southern West Virginia without individual reviews.

Goodwin ordered the agency to suspend those for valley fills “on which construction has not commenced as of today, July 8, 2004.”

Since the ruling, though, some coal industry officials have argued that the order does not apply to sites where preparatory work — such as building sediment ponds at the foot of valley fill sites — has begun.

Blain Rethmeier, a spokesman for the U.S. Justice Department, which is representing the corps, said the agency would not explain its interpretation of the Goodwin ruling.

During Thursday’s workshop at a South Charleston hotel, corps officials distributed copies of a March document that outlines how companies can obtain the very nationwide permits that Goodwin ordered not be issued.

Initially, a corps spokesman said he didn’t know why the document was still being distributed. Later, the spokesman said it was handed out because some workshop participants were from states where Goodwin’s ruling is not in effect.

Chuck Minsker, the corps’ spokesman, said agency officials have inspected eight of the 11 mining operations specifically mentioned in Goodwin’s original ruling.

“I assume they were checking to see that [the operators] were following the guidelines that were sent out,” Minsker said.

The corps, though, has not sent out any guidelines. Instead, the agency simply sent operators a letter that quoted directly from Goodwin’s ruling.

Asked what sort of activity the corps inspectors would consider a violation of Goodwin’s ruling, Minsker said, “I can’t really answer that question.”

Taylor first said that corps inspectors had found “a full range” of work had been done at the mine sites as of the July 8 date of Goodwin’s ruling.

Later in the same interview, Taylor said, “So far, it’s been pretty cut and dried, between all of the waters having been filed, or they’ve done nothing.”

Taylor said he could not say what the corps would tell a coal operator who asked for guidance on how to comply with Goodwin’s ruling.

“If they have that question, they can ask it, and we will answer it,” Taylor said.

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