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Court questions mining permits

CHARLESTON, W.Va. -- A federal appeals court has criticized a streamlined permit process used by the U.S. Army Corps of Engineers, adding to the questions about the way the agency reviews new mountaintop removal mining proposals.

The 6th U.S. Circuit Court of Appeals ruled that the corps did not properly consider the cumulative impacts of previous mining or document how post-mining "mitigation" measures would make up for any damage to streams.

A three-judge panel of the Cincinnati-based court threw out a streamlined Clean Water Act permit process that was issued by the corps in 2007 and has since been updated with more environmental restrictions.

But the 16-page decision, in a case brought by Kentucky citizen groups, involves broader questions about whether the corps ignores growing scientific evidence about mountaintop removal impacts when it issues new mining permits.

In a decision written by Judge Deborah L. Cook, the 6th Circuit directed the corps to use past mining impacts more carefully to assess cumulative effects and to document in more detail whether mitigation can effectively reduce those effects.

"Up to now, the corps has refused to take these issues seriously and to measure mitigation effectiveness," said Jim Hecker, a Public Justice lawyer who represented citizen groups in the case.

Doug Garman, a corps spokesman, said his agency is reviewing the 6th Circuit decision, but offered no further comment. A National Mining Association spokeswoman did not immediately respond to a request for comment.

The issues regarding corps' permitting practices are similar to those in a pending challenge at the 4th Circuit Court of Appeals to a ruling in which U.S. District Judge Robert C. Chambers declined to overrule a corps-issued permit in Logan County.

Chambers ruled in a case over an Alpha Natural Resources mining proposal that the corps handled through its more detailed "individual permit" process, instead of the streamlined "nationwide permit" procedure.

In the Alpha case, Chambers said that scientific evidence clearly shows mountaintop removal is damaging water quality and aquatic life downstream from mining. But the judge said a previous 4th Circuit decision tied his hands, forcing him to defer to the corps' permit approval.

The 6th Circuit agreed that federal agencies are due broad deference in such cases, but said that the courts "may not excuse an agency's failure to follow the procedures required by duly promulgated regulations." In this instance, the court said, the corps had ignored regulatory requirements of both the Clean Water Act and the National Environmental Policy Act that it "take a hard look" at the environmental impacts before approving more mining permits.

"Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CWA and NEPA standards," the court said. "We may not supply a reasoned basis for the agency's action that the agency itself has not given."

The 6th Circuit case involved the previous practice by the corps of approving many mountaintop removal operations through a streamlined permit process meant only for activities that cause minimal environmental harm. U.S. District Judge Joseph R. Goodwin in Charleston had twice blocked the corps from using such permits, and the case involved authorizations issued under a 2007 version of the agency's "Nationwide Permit 21" for surface coal mining.

That 2007 nationwide permit expired in 2012, and a more restrictive version was issued by the Obama administration. But the corps also created a loophole that gave about 70 uncompleted mining projects until 2017 to operate under the old standards.

It's not clear now what will happen with those projects. The 6th Circuit stayed its ruling for 60 days to allow the parties to "assess the ramifications of this ruling on existing projects" and consider "potential remedies."

The 6th Circuit's decision overturned a previous ruling by U.S. District Judge David Bunning in Pikeville, Ky.

"This decision has been a long time coming," said Judy Petersen, executive director of Kentucky Waterways Alliance, one of the groups that brought the case. "Every year we see the health of rivers and streams in eastern Kentucky declining. "In 2010, according to the Kentucky Division of Water, only 1 percent of eastern Kentucky streams fully supported fish and other aquatic life. I'd say that we can see an impact from mining."

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


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