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Coal industry wants activists muted in courts over mine permits

HUNTINGTON, W.Va. -- Coal industry lawyers are hoping to combine the results of several recent court cases to significantly narrow the ability of citizen groups to block new mountaintop-removal mining permits in federal court.

Lawyers for Alpha Natural Resources outlined their strategy last week during a hearing before U.S. District Judge Robert C. Chambers, who is considering citizen group challenges to at least two permits issued by the U.S. Army Corps of Engineers.

Shane Harvey, a former Massey Energy Co. general counsel now representing Alpha, argued that a trio of federal court cases leaves Chambers with very little ability to overrule a permit approval from the corps.

The rulings -- a district court ruling, an appeals court decision and a U.S. Supreme Court opinion -- show federal judges should "defer to the corps' review" of applications for Clean Water Act "dredge-and-fill" permits, Harvey said in a legal brief.

Chambers did not immediately agree, and questioned Harvey in detail about parts of the industry's analysis. Obama administration lawyers, representing the corps at the hearing, also argued a similarly narrow view, saying Chambers should not hear detailed evidence from academic experts working with citizen groups in the case.

At issue is a permit the corps granted to Alpha subsidiary Highland Mining for its 635-acre Reylas Surface mine near Ethel in Logan County.

The company hopes to employ about 100 people for six years of mining, and then create a 235-acre site with paved roads and utilities that could be used for temporary housing during flooding and other emergencies. The mine, though, would bury about 2.5 miles of streams beneath a valley fill and associated runoff-control structures.

Citizen groups argue that the mine would add to existing pollution problems in the Dingess Run watershed, and that the corps did not allow public input on the company's proposal to mitigate mining damage. At Alpha's request, Chambers blocked an effort by citizen groups to also argue that the mine would add to existing public health problems recent scientific papers have linked to living near mountaintop-removal mining.

Also pending before Chambers is the Ohio Valley Environmental Coalition's challenge of a corps-issued permit for Loadout LLC to operate its Nellis Surface Mine in Boone County.

Under state and federal laws, mining operations must obtain a variety of permits, including surface-mining and water-discharge permits issued by the state Department of Environmental Protection, and fill permits handled by the corps.

While the Obama administration's crackdown on mountaintop removal slowed the issuance of new strip-mining permits across Appalachia, the U.S. Environmental Protection Agency has given its blessing to some corps-issued permits and not stepped in to block others.

EPA officials, for example, expressed concerns about the Alpha and Loadout permits at issue before Chambers, but did not use their authority to actually stop the corps from approving the permits. The situation is different from the EPA's veto of the Spruce Mine -- which was overturned by a federal judge -- because the EPA could have blocked the Alpha and Loadout operations before the corps approved the permits. In the Spruce case, the Obama EPA stepped in after the permit was allowed to go forward -- despite serious EPA concerns -- by the George W. Bush administration.

Now, citizen groups are heading back into court to try to block more corps permits, an effort that has seen some success, at least at the federal district court level in West Virginia.

However, Harvey pointed to a 2009 ruling by the 4th U.S. Circuit Court of Appeals, in which a panel of judges overturned Chambers' previous decision to block four mining permits issued by the corps.

Harvey noted that the 4th Circuit said approval of water-quality certifications for strip-mining permits, a matter handled by the DEP, should generally be "conclusive." Harvey argued that, given that ruling, the DEP's sign-off that the Highland Reylas Mine would not violate water-quality rules would generally be controlling -- meaning the corps had to go along with it, and Chambers would have to defer to the corps and the DEP.

The one exception would be if the EPA objected to the state's water-quality certification, Harvey said.

The EPA did raise concerns about water-quality issues with the Highland Reylas Mine, but Harvey argued that those concerns were raised as part of the EPA's enhanced mining permit review process that a federal judge in Washington, D.C., threw out as illegal in a lawsuit brought by the National Mining Association.

Harvey also argued that what citizen groups are really trying to do is challenge the DEP's approval of a water-pollution discharge permit for the Alpha mine. He said a U.S. Supreme Court decision involving an Alaska gold mine ruled that water-pollution discharge permits can't be indirectly challenged through lawsuits over separate "dredge-and-fill" permits issued by the corps.

Lawyers for citizen groups, Alpha and the corps were seeking a legal ruling that could narrow the issues for a trial on the Highland Reylas permit, scheduled to start May 8.

Chambers said he is likely to rule in favor of the corps and Alpha on the issue of whether a plan to mitigate any stream damage from the mine is adequate, but will allow a trial with detailed testimony on the broader issue of whether the corps properly considered any potential cumulative impacts of the Highland Reylas operation.

In the Loadout matter, the company agreed to delay the start of any mining operations until the judge could hold another hearing on that permit, probably on May 18.

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


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