This article originally published by The Lexington Herald-Leader

June 14, 2007

Judge rules mine sediment ponds violate Clean Water Act

By TIM HUBER
AP Business Writer

CHARLESTON, W.Va. --Using settling ponds to remove sediment from streams at mountaintop removal coal mines violates the Clean Water Act, a federal judge ruled Wednesday.

The ruling by U.S. District Judge Chuck Chambers jeopardizes an industrywide practice that's been used for decades. Chambers also ruled that the U.S. Army Corps of Engineers doesn't have the authority to allow mines to discharge sediment into settling ponds.

The corps has long allowed mountaintop removal mines to build settling ponds just below valleys that have been filled with rock and dirt removed to expose shallow coal seams. The corps has maintained that those stretches are wastewater treatment ponds and not waters of the United States.

A spokeswoman for the Department of Justice, which is representing the corps, declined to comment Wednesday.

The decision came in a lawsuit brought by the Ohio Valley Environmental Coalition and two other groups. In an earlier ruling in the case, Chambers held that the corps violated federal law by issuing valley fill permits for four mountaintop removal mines without adequately determining whether the environment would be harmed.

Chambers' earlier ruling has raised numerous questions in the coal industry about the future of mountaintop removal mining in Appalachia. While decried by environmentalists, the practice is embraced by the industry because it is a generally less expensive and more efficient method of removing coal compared with underground mines.

All four mines are operated by subsidiaries of Richmond, Va.-based Massey Energy Co. A spokesman did not immediately respond to requests for comment Wednesday.

Vivian Stockman from the Ohio Valley Environmental Coalition said the ruling reinforces the plaintiffs' belief that the corps has long acted illegally. "The judge has basically ruled that the way mines are built now is violating the Clean Water Act," she said.

But West Virginia Coal Association President Bill Raney called the ruling "astonishing."

"It appears that the judge is attempting to overturn the Surface Mining Act, which has been around for 30 years," Raney said, adding that sediment ponds improve water quality.

The ruling raises questions about underground coal mines as well, which also have drainage controls, Raney said. "Every one of them, they're mandated by the Surface Mining Act," he said. "The judge has literally said, well, you can't use those anymore."