This article originally published by WVEC.com

November 30, 2006

Judge expected to decide in mountaintop removal case

Associated Press

A court ruling is expected before the year's end that may redefine the rules for mountaintop removal mining and valley fills.

U.S. District Judge Chuck Chambers on Wednesday questioned lawyers for the U.S. Army Corps of Engineers about the agency's approval of permits for valley fills at four Massey Energy Co. mountaintop removal mines.

Wednesday's hearing in Huntington was the last one in a federal lawsuit brought by the Ohio Valley Environmental Coalition and two other environmental groups that are challenging the permitting process for the valley fills. The environmental groups want the corps to perform more extensive environmental reviews based on the Clean Water Act before granting valley fill permits.

The permits allow Richmond, Va.-based Massey to fill nearby valleys with dirt, rocks and other material removed to expose coal seams.

The four Massey mines are the Republic Energy Mine in Fayette County, the Camp Branch Mine in Logan County, and the Black Castle Mine and Laxare East Mine, both in Boone County.

The corps maintains that more extensive reviews weren't necessary for the permits involved in the suit. And the coal industry says that could slow or even stop surface mining in the region. Mountaintop removal mining, though controversial, is a considerably less expensive way to extract coal than underground mining.

Key issues in the case are whether the corps properly determined if valley fills have a significant impact on the environment, and whether the agency provided a detailed analysis of its decision on that issue in the permit approval documents.

While environmental groups say the damage is significant, corps lawyers argue that coal companies build new artificial stream channels and other projects that mitigate the damage.

Environmental groups' lawyers say there is little scientific evidence that such projects work.

Chambers asked for an explanation of how such projects could replace ecological functions such as water purification and decomposition of nutrients.

"One would expect there to be an explanation of why the additional destruction of headwaters streams that adds to that impact isn't a significant effect," Chambers said.

Cynthia Morris, a corps attorney, conceded the corps did not provide a detailed analysis of each factor it was supposed to consider in weighing possible impacts. Morris also said any negative impacts were not considered as serious because the mines are located in remote and undeveloped areas.

"Eleven percent of impacts may be significant in a national park," Morris said. "Whereas, a much greater percentage of impacts in an area of limited population and no alternative potential land use foreseeable, that may certainly be less significant."

Chambers said he hoped to issue a ruling within a month.

In a related case, U.S. District Judge Joseph R. Goodwin is considering whether to prevent the corps from approving valley fills through a streamlined permit process.

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Information from: The Charleston Gazette, http://www.wvgazette.com