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Judge questions mine permit approvals

HUNTINGTON – A federal judge on Wednesday questioned the U.S. Army Corps of Engineers’ approval of the burial of more streams by mountaintop removal coal-mining operations.

U.S. District Judge Robert C. Chambers pressed corps lawyers to explain why the agency doesn’t require more detailed environmental studies before approving more valley fills. Chambers also asked why the corps didn’t spell out the reasoning behind its decisions in documents available to the public.

“Where is it explained why there is no cumulative impact?” Chambers asked at one point during a five-hour hearing Wednesday.

During an oral argument session, Chambers heard the last from lawyers in a case that challenges the way the corps approves mountaintop removal valley fills.

In October, the judge heard about 32 hours of testimony over six days in the case filed by the Ohio Valley Environmental Coalition and two other groups.

Environmental group lawyers argue that the corps should be forced to conduct lengthy “environmental impact statements” on Clean Water Act “individual permits” for each of four Massey Energy mine proposals.

Chambers will rule specifically about those four Massey permits, where work has already begun on some of the valley fills. His decision could have a much broader impact on the state’s coal industry, setting the rules for future permit reviews by the corps.

Key to the case is whether the corps properly examined if valley fills create significant adverse environmental impacts, and if the agency spelled out a well-reasoned decision on that issue in its permit approval documents.

Stephen E. Roady, a lawyer for the citizen groups, said government has conceded that the fills cause serious damage.

“Nobody denies that,” Roady said. “It’s pretty obvious that there are significant effects.”

Corps lawyers, though, argue that the coal companies build new artificial stream channels and other projects that “mitigate” the damage to below the “significant” impact level.

Environmental groups’ lawyers say there is little scientific evidence that such projects really work. The judge questioned how such projects could possibly replace important ecological functions – such as water purification and decomposition of nutrients that move up the food chain – of small, headwaters streams.

Cynthia Morris, a corps attorney, repeatedly reminded Chambers that U.S. Supreme Court rulings don’t allow him to interject his own judgment for that of the corps. Instead, Chambers is charged to decide if the corps’ action was reasonable, or if it was “arbitrary and capricious,” as the environmental groups argue.

Chambers noted that evidence previously presented to him showed fills burying significant portions of the streams in certain coalfield watersheds.

Still, the judge said, the corps ruled that more fills would not cause “significant” adverse impacts, the trigger for requiring more detailed studies.

“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 told Morris.

In response, Morris conceded the corps did not provide a detailed analysis of each of the factors it was supposed to consider in weighing possible impacts.

Morris also said any negative impacts were not considered as grave because the mines are located in remote and undeveloped areas of Appalachia.

“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.”

Morris also said some of the mines are proposed in areas where past coal mining has already degraded the environment, so more impacts would not make as big a difference. In some cases, Morris said, mining would actually improve the area’s environment.

“If you’re going to be impairing an area that has already been degraded, then the effects are not going to weigh as heavily in that balancing analysis,” Morris said.

In court papers, the Bush administration argued that the environmental groups’ real goal “is to stop coal mining in Appalachia – which would prejudice the nation’s energy supply needs, displace workers, and negatively impact economic development in the region.”

Bob McLusky, a lawyer for Massey, said in a legal brief the case is part of the environmental community’s “ongoing war against one of the few economic engines left in West Virginia.”

McLusky noted that the Massey operations being challenged would produce about 50 million tons of coal over the next five to 15 years, and employ more than 630 people for that time period.

In another brief, former top state water pollution regulator Allyn Turner, now representing the West Virginia Coal Association, said requiring the more detailed permit studies sought would “paralyze the permitting process, disrupt current West Virginia coal operations, and impede further economic development in the region.”

Chambers said he hoped to rule on the matter within a month.

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

By Ken Ward Jr.
Staff writer of The Charleston Gazette





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