This article originally provided by The Charleston Gazette

October 12, 2007

Boone County mountaintop removal project blocked

Ruling might cost 39 miners their jobs at Castillo

By Ken Ward Jr.
Staff writer

A federal judge on Thursday blocked a coal operator from starting a new valley fill at a mountaintop removal mine in Boone County.

U.S. District Judge Robert C. Chambers issued a preliminary injunction that stops new mining at Jupiter Holdings LLC's Callisto Surface Mine near Bob White.

Chambers ruled that permanent damage to streams and forests outweighed temporary and speculative economic harm to the company.

"Money can be earned, lost and earned again," Chambers wrote in a 12-page opinion, "a valley once filled is gone."

Chambers said it is "undisputed" that the mining would damage the environment. Also, the judge said, the permit approval was based on the same flawed environmental evaluation and mitigation techniques as others he previously has ruled were illegal.

The preliminary injunction issued Thursday blocks further mining until Chambers can hold a full trial on allegations about the permit's legality.

In the meantime, the ruling could cost at least 39 miners at the strip operation their jobs. Another 180 miners at a related underground mine also might be affected, company officials have said.

"They were very disappointed," Magnum Coal engineer Mike Day said after telling workers of the ruling. "With the holidays coming soon, it was tough to deliver that message." Magnum is Jupiter Holdings' parent company.

Chambers ruled in favor of a request by the Ohio Valley Environmental Coalition and other groups that he block a U.S. Army Corps of Engineers permit for the mine.

That legal effort comes after Chambers ruled in March that the corps had not fully evaluated potential environmental damage before approving four other strip-mining permits owned by Massey Energy.

The judge later allowed three of the four Massey permits to continue dumping waste because they already had started operations. Massey is seeking a similar ruling for the fourth mine.

After Chambers' March ruling, environmental group lawyers added the corps' permit for the Callisto Mine to their lawsuit in U.S. District Court in Huntington.

In Thursday's ruling, Chambers explained that all environmental laws contain "numerous provisions that serve as checks on development, industry and other economic activities in order to ensure that environmental consequences are considered and valuable environmental resources are protected.

"While it is true that these statutes contemplate a certain amount of environmental degradation, they also mandate a certain amount of economic loss," Chambers wrote. "Economic gain is not to be pursued at all costs, and certainly not when it is contrary to the law."

Chambers concluded that environmental group lawyers have "made a strong showing that the permits issued by the corps are arbitrary and capricious, contrary to law, and contrary to the economic and environmental balance struck by Congress in the passage of the relevant environmental statutes."

Initially, officials from Magnum Coal said that they would not need to begin new valley fills until after the 4th U.S. Circuit Court of Appeals hears an appeal of Chambers' previous decision, probably sometime next year. However, in mid-December, Magnum general counsel Richard Verheij told environmental groups the company planned to move forward much sooner on at least one valley fill.

During a Sept. 26 hearing in Huntington, company officials said their existing valley fill is almost full of waste rock and dirt. To continue mining, company officials said, they needed to start a new valley fill much sooner.

The fill in question would bury more than 2,000 feet of streams. It would give the company coal reserves and fill space to continue operations for about 18 months.

Chambers explained that Jupiter's "main interest in opposing this motion is its own economic interest.

"While the court must certainly consider the economic effect of this decision on Jupiter's employees and the surrounding communities, these effects are distinguishable from the harm suffered by Jupiter itself," Chambers wrote.

"While Jupiter may or may not be a good employer or a beneficial corporate citizen, it is certainly out to make money," the judge wrote. "Whether it is environmental enforcement or other market forces that cut into profits, Jupiter's interest in its own bottom line may cause it to lay off its workers."

Chambers said the "main harm suffered by Jupiter, therefore, is a delay in reaping economic benefits from the Callisto mine.

"This temporary economic harm can be outweighed by the permanent harm to the environment that comes from the filling of streams and valleys," Chambers wrote.

Day, the company official, said environmental groups are to blame for the lost jobs.

"It's a direct result of the actions of OVEC, and they have to be held accountable," he said.

Asked to explain, Day said he thinks environmentalists should have to pay the miners' salaries until they find other jobs.

Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, praised Chambers' ruling.

"No one wants to put another person out of work, but the promise of jobs based on illegal permits is not fair either," Rank said. "Inch by inch, mile after mile, these illegal fills are changing the face of West Virginia, burying valuable stream valleys and destroying the lives of people who have lived in these valleys for generations."

Click here to read the judge's ruling.

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