Fight Renewed Over Streamlined Mine Permits

by Ken Ward Jr., Charleston Gazette, April 26, 2007

While one mountaintop removal court ruling is appealed, lawyers for citizen groups and the industry set the stage on Wednesday for a renewed battle over streamlined permitting of mining valley fills.

Lawyers for the Ohio Valley Environmental Coalition (Ed: and WV Highlands Conservancy and Coal River Mountain Watch) allege that federal regulators have wrongly returned to the use of "nationwide" or "general" permit approvals for valley fills.

During a morning hearing, Apogee Coal Co. agreed to temporarily stop burying streams at a Logan County mine until U.S. District Judge Joseph R. Goodwin can consider the matter. Goodwin scheduled a full preliminary injunction hearing to start May 31.

Citizen group lawyer Joe Lovett had asked Goodwin to block the Apogee permit, which the federal Army Corps of Engineers approved in early March through its streamlined permit process.

Goodwin was reluctant to do so, after hearing from a company engineer that the streams involved were already buried by a 3- to 6-foot deep rock drainage system.

"The only thing that injunctive relief would accomplish at this point would be to keep it from being buried deeper," the judge said.

The case before Goodwin is part of a broader and more complicated legal battle over the way the corps approves the burial of streams by mountaintop removal mines.

Under the federal Clean Water Act, the corps can issue two types of fill permits.

One is called a nationwide or general permit. The corps writes a permit containing a set of general conditions meant to protect the environment.

If companies submit an application that shows they will meet those conditions, they receive an "authorization" under the general permit, with little additional review by corps officials. Corps officials are supposed to use general permits only for small activities that cause little environmental damage.

The other corps permit is called an individual permit. These involve a somewhat more detailed review by the corps, and are meant for larger activities that can do more damage.

Over the last few years, environmental groups have challenged the corps’ approval of valley fills through both of these permit processes.

In one case, Ohio Valley Environmental Coalition lawyers argued that the corps could not approve valley fills through general permits. They argued that fills have greater than minimal impacts, the legal test for being covered by general permits.

Three years ago, Goodwin agreed. In a July 2004 ruling, the judge said the corps had never shown fills caused only minimal damage, and blocked further use of Nationwide Permit 21, which the corps used for mining fills.

In February 2006, the 4th U.S. Circuit Court of Appeals overturned Goodwin’s decision.

Since March 2006, environmental groups have been trying to get Goodwin to issue another ruling on issues he didn’t previously decide and that weren’t overturned by the 4th Circuit.

At the same time, U.S. District Judge Robert C. Chambers was hearing a challenge to corps’ approvals of individual permits for mining valley fills.

In a March 23 decision, Chambers blocked four corps’ permits for Massey Energy, ruling that the corps had not fully evaluated the potential environmental damage before approving the operations.

Massey has said that it will appeal Chambers’ ruling to the 4th Circuit.

This week, the court battle shifted back to the case pending before Goodwin.

Originally, Apogee Coal, an affiliate of Magnum Coal, had sought approval for its North Rum Surface Mine in Logan County through a corps individual permit.

Michael Day, director of surface operations for Magnum Coal, said the company went that route because of the litigation over nationwide permits pending before Goodwin.

But, as Chambers neared a ruling in the individual permit case, the company went back to the corps and asked for approval through the nationwide permit, court records show.

In court briefs, Lovett and citizen group lawyer Jim Hecker argued that the corps was wrong to consider and approve the proposal through a nationwide permit. They noted that the North Rum operation would bury a longer section of streams than one of the individual permits that Chambers blocked.

"The corps found that the cumulative effects are the loss of nearly half of the Upper Spruce Fork watershed and more than a third of its headwater streams," Lovett and Hecker wrote. "The corps has no reasoned explanation or scientific analysis to support its conclusion that this amount of damage is minimal."