The ruling comes just two weeks after a major decision in which a federal judge in Washington, D.C., threw out EPA water quality guidance aimed at reducing the damaging effects of mountaintop removal. The Obama administration EPA had already lost two earlier legal challenges to its tougher review of mining permits and its veto of the water pollution permit for the largest mountaintop removal mine in West Virginia history.
In mountaintop removal, coal operators use explosives to blast off entire hilltops and uncover valuable low-sulfur coal reserves. Leftover rock and dirt is shoved into nearby valleys, burying streams.
Industry officials consider the method to be highly efficient and the only way to reach some thin seams of Appalachian coal. Critics point to the fewer number of workers mountaintop removal needs, and to a growing body of science that shows forests, water and community health are threatened by mining practices.
At issue before Chambers was a Clean Water Act "dredge-and-fill" permit needed for Alpha for its 635-acre Reylas Surface Mine near Ethel in Logan County.
Alpha 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.
The Ohio Valley Environmental Coalition and other 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.
Already, Chambers had ruled against the citizen groups on several issues, including an effort to introduce as evidence peer-reviewed studies that show residents living near mountaintop removal face increased risks of serious illnesses, including cancer and birth defects. After a four-day trial in May, the judge was left to decide allegations that the corps' assessment of the mine's potential cumulative impacts was "arbitrary and capricious," a typical legal standard for overturning an agency decision.
Chambers ruled that some of the corps' key moves concerning the permit -- such as its determination that the impacted watershed was not already seriously impaired by past pollution -- were acceptable and reasonable.
The judge said he remains "extremely skeptical about the viability" of coal company plans to rebuild or replace streams buried by valley fills, but was prohibited by the 4th Circuit's previous decision from second-guessing the corps on that subject.
Chambers also said that during trial the citizen groups "presented unrefuted evidence of a correlation between mining" and electricity conductivity pollution, decreased scores on West Virginia's measure of stream health, and the loss of sensitive aquatic insects in waters downstream from valley fills.
"The testimony of plaintiffs' experts was compelling, and the efforts by the corps and [Alpha] to discredit them were in vain," the judge wrote. "The court is thoroughly convinced that large-scale surface mining is strongly correlated with elevated levels of conductivity and the loss of sensitive macro-invertebrates downstream of valley fills. This conclusion, however, is not enough to vacate the corps' decision on the Reylas permit."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.