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Judge Chambers blocks health studies from mine permit case

Read the ruling online.

CHARLESTON, W.Va. -- A federal judge has sided with Alpha Natural Resources in the company's effort to keep testimony about West Virginia University studies linking mountaintop removal to birth defects and cancer among coalfield residents out of a legal challenge to one of Alpha's new mining permits.

U.S. District Judge Robert C. Chambers refused to allow the Ohio Valley Environmental Coalition to allegations about potential human health damage to the group's lawsuit challenging a Clean Water Act permit for the Reylas Surface Mine, proposed by Alpha subsidiary Highland Mining.

The coalition and other groups are asking to add a claim about potential human health impacts to a suit that challenges a Clean Water Act permit the U.S. Army Corps of Engineers issued for the 235-acre mine proposed for Logan County.

Environmental group lawyers cited three studies co-authored by WVU researcher Michael Hendryx that found generally higher rates of health problems, and specifically higher rates of cancer and birth defects, among residents living near mountaintop removal operations in Appalachia.

The three papers are among a series of 20 peer-reviewed studies Hendryx and various co-authors have published examining possible links between mountaintop removal and various illnesses. Collectively, the papers have given weight to citizen complaints about coal's impact on public health. Anti-mountaintop removal activists point to the research to show that the issue isn't just about mining's effects on salamanders, mayflies or isolated mountain streams.

But in a six-page ruling issued earlier this week, Chambers said the citizen groups could not have won a permit challenge based on their argument the corps did not consider the human health studies in its review of the Reylas permit.

"Having been presented with the newly published Hendryx studies for the first time in this lawsuit, the corps has not had a reasonable opportunity [to] consider them, let alone to take action that could be found to be arbitrary and capricious," the judge wrote.

While the specific birth defects and cancer studies citizen groups cited were published shortly after the corps issued the Reylas permit, most of the Hendryx papers appeared in peer-reviewed scientific journals before the permit decision was made.

The corps did not mention any of the studies in its permit decision, but concluded that, "No human health effects are anticipated as a result of the proposed project.

"It has been determined that the proposal would not result in any adverse impacts to the quality of the human environment," the corps said.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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