This article originally published by The State Journal

March 29, 2007

Mines' Futures Uncertain After Ruling

Story by Beth Gorczyca Ryan Email | Bio

The futures of four large surface mines in southern West Virginia are up in the air after a federal judge rescinded the mines' valley fill permits March 23.

U.S. District Judge Robert "Chuck" Chambers ordered valley fill permits be rescinded immediately at the Camp Branch, Black Castle, Republic No. 2 and Laxaire mines and prohibited the U.S. Army Corps of Engineers and the four mining companies -- all subsidiaries of Massey Energy -- from engaging in activities authorized under those permits. In addition, Chambers remanded the permits to the Corps for new review.

His ruling brought to a close a legal battle that had raged between the Corps and the three environmental groups -- Ohio Valley Environmental Coalition, Coal River Mountain Watch and West Virginia Highlands Conservancy -- for nearly two years and included a week of courtroom testimony and thousands of pages of documents being filed.

"This is an important decision for West Virginia and the region as a whole," said Joseph Lovett, an attorney with the Appalachian Center for the Environment and the Economy, which worked with EarthJustice to represent the environmental groups in the suit.

The state's coal community does not share Lovett's delight. The four mines employ about 600 people and produce about 40 million tons of coal a year. That production makes up between one-quarter and one-third of the state's total production.

State officials and coal industry executives worry that decision could have far-reaching impact on the state, its economic health and future investment.

Mark Muchow, deputy secretary for the state Department of Revenue, said Chambers' ruling may not have much short-term impact on mining in the state, mostly because coal mining production already is in retreat due to lower prices and increased competition from other regions. But in the long term, the ruling could have a stifling effect on the mining industry in West Virginia.

He added that the ruling could result in decreased coal production, which could reduce severance tax revenues, and it could have additional negative impacts on income tax, property tax and sale tax revenues. He said that will be particularly evident in the counties where the mines are located -- specifically Boone, Fayette and Logan counties.

But environmental groups say possible economic impacts linked to rescinding permits can't compare to the real and obvious impact the valley fills have had on the environment.

Chuck Nelson, a retired Raleigh County deep miner who now volunteers with OVEC, said a 2005 study showed mountaintop removal and valley fills already had buried or impacted 1,200 miles of headwater streams in Appalachia.

"These permits should have not been issued in the first place. Scores of citizens are speaking out about the devastating impacts that mountaintop removal and valley fills have had on their lives, communities, health and day-to-day living that most take for granted," he said.

"Judge Chambers has ruled that the massive destruction of mountaintop removal is improperly permitted. This thoughtless permitting has cost southern West Virginia our long-term economic future and our way of life," he said in a prepared statement.

A Question of Enforcement

The environmental groups sued the Corps on the grounds that it failed to properly enforce the Clean Water Act and the National Environmental Policy Act when granting specific permits allowing valley fills. Specifically, they alleged the Corps failed to conduct environmental impact statements, improperly limited the scope of analysis and did not consider the cumulative effects of the permits on the environment, including how the permits would impact the structure and function of streams and whether the fills would exacerbate runoff or flooding.

The Corps countered those allegations, saying its employees adhered to agency standards when considering each application. It said employees look at streams' functions, how valley fills might impact the ecosystem and each mine's mitigation plan before awarding the permit.

Chambers' job was to determine whether the agency's decision to grant the permits was based on fact and relevant information and whether Corps employees followed the rules and regulations.

In his ruling, Chambers recognized the Corps had no direct regulatory authority over mountaintop mining. But he did point out that federal law requires the Corps to monitor all of the nation's waterways and investigate whether fills impact the environment of the stream, creatures living in the stream or humans nearby.

Corps employees are supposed to look at, among other things, water circulation, whether contaminants are introduced to creeks and whether organisms living in the waterways are affected.

The law says a permit is not supposed to be granted if there is an alternative that has a less adverse impact on the environment or whether the proposed fill will seriously degrade a waterway.

The National Environmental Policy Act also works to protect the environment by setting forth procedural requirements that ensure federal agencies act to prevent or eliminate damage to the environment. It requires agencies to take a hard look at environmental consequences before taking any action.

If an agency does not believe the proposed action will significantly impact the environment enough to merit an environmental impact study then it must issue a FONSI, or finding of no significant impact, which contains the basis for its decision.

In his order, Chambers acknowledged that it appeared as though Corps' workers dedicated ample amounts of time and energy to fully investigate what the potential impacts of the valley fills might be. But he criticized the practices and fundamental assumptions the Corps used to make its decisions.

Chambers said the Corps' protocols and standards did not consider the full effects of valley fills and did not consider the full effects of discharge. He ruled the Corps must conduct more thorough investigation of all of the impacts of valley fills before permits can be awarded.

Chambers pointed out that Corps employees did not deny that valley fills at the four mines would bury tens of thousands of feet of intermittent and ephemeral streams and negatively impact water quality. However, Corps employees defended their approvals because the coal companies had agreed to either replace the streams or restore streams elsewhere.

That, Chambers said, may not be enough.

Next Step Unclear

In his order, Chambers said the Corps failed to comply with the two federal environmental acts and failed to adequately address certain issues as to the impacts of mining activity on the environment.

He said he felt he had two options: either require the Corps to conduct a full environmental impact statement for each application or send the permits back to the Corps so they can reconsider them in light of Chambers' order. The judge opted for the second option.

His 89-page order was full of different areas where he believed the Corps failed to live up to its job and inadequately analyzed different impacts of valley fills. He also pointed out areas where he believed the Corps made false assumptions about certain outcomes and impacts.

"The Corps did not adequately address certain issues as to the impacts of the mining activity on the environment," he wrote. "Failing to conduct its review as required under the (Clean Water Act and National Environmental Policy Act), the Corps decided to issue findings of no significant impact where environmental impact statements may have been required."

Jackson Kelly attorney Robert McLuskey, who represented Massey in the suit, deferred all comments about the company's reaction to Chambers' decision to Massey spokesman Jeff Gillenwater. Gillenwater did not return two messages left at his office.

McLusky also said it was too soon to say whether the company planned to appeal.

A spokesman with the U.S Department of Justice, which represented the Corps in the lawsuit, said it is in the process of reviewing the decision, and no conclusions have been reached as to whether the Corps will change its practices or whether it will file an appeal.

Chambers said in his written opinion that he understands the importance of mining to West Virginia and its economy, particularly in the southern region of the state. But he said he also understands the importance of waterways, the environment and oversight agencies following both the law and their own rules.

"Coal mining has long been part of the fabric of Appalachian life, providing jobs to support workers and their families and energy to fuel the nation. Unfortunately, coal mining also exacts a toll on the natural environment. In particular, the mining technique at issue in these permits potentially results in dramatic environmental consequences," Chambers wrote.