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4th Circuit upholds Alpha mine permit decision

Read the ruling here.

CHARLESTON, W.Va. -- A federal appeals court has upheld a decision that cleared the way for a Clean Water Act permit needed for a new mountaintop removal mine in Logan County.

On Wednesday, a 4th U.S. Circuit Court of Appeals panel affirmed an August 2012 ruling in which U.S. District Judge Robert C. Chambers did not revoke the permit issued by the federal Army Corps of Engineers.

Judge Paul V. Niemeyer said the agency decision satisfied federal legal requirements that it take a "hard look" at the potential impacts of mining.

"Our review is limited, and we may not use review of an agency's environmental analysis as a guise for second-guessing substantive decisions committed to the discretion of the agency," Niemeyer wrote.

The "dredge-and-fill" permit is part of Alpha subsidiary Highland Mining's proposal for the 635-acre Reylas Surface Mine near Ethel in Logan County.

"It's rewarding to us to see that the courts have multiple times cast aside the unfounded arguments of a small number of special interest groups who wish to stop coal at all costs," said Ted Pile, a spokesman for Alpha. "Who wins in this ruling are really the communities of Appalachia that are able to preserve high-paying mining jobs and enjoy the economic benefits that come with a properly run, well-regulated business."

The Alpha permit ruling comes three weeks after a pair of federal appeals court mountaintop removal decisions -- concerning the U.S. Environmental Protection's veto of the Spruce Mine in West Virginia and a broad permit challenge out of Kentucky that went to the Cincinnati-based 6th Circuit -- that went against the coal industry.

At its Reylas Mine, 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.

Chambers refused to allow the Ohio Valley Environmental Coalition and other citizen groups to introduce as evidence peer-reviewed studies that show residents living near mountaintop removal face increased risk of serious illnesses, including cancer and birth defects.

After a four-day trial in May 2012, Chambers found citizen groups presented "un-refuted evidence" about mining's damage to water quality and raises serious questions about whether such damage can be mitigated. But, Chambers said his hands were tied by a 2009 ruling in which the 4th Circuit said he should have deferred to the corps, rather than overturn four mountaintop removal permits issued by the corps.

That 2009 ruling marked the fourth time between 2001 and 2009 that the Richmond, Va.-based appeals court had overturned three different federal judges from West Virginia in rulings that would have curbed mountaintop removal.

Environmental group lawyers had been more hopeful this time, with six new judges appointed by President Obama sitting on the court.

But the case drew a panel of three judges appointed to the federal bench by Republican presidents. The judges included Niemeyer, who had written two of the previous 4th Circuit rulings supporting mountaintop removal practices.

"It's always been frustrating for us to watch the 4th Circuit rulings on these cases," said Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy. "Time and time again we have these experts come in an talk about the impacts, and it just seems to go right over the head of the corps and the 4th Circuit just takes and accepts that."

Appeals court panels are supposed to be selected randomly. But in previous mountaintop removal cases, the pool of judge was greatly limited by the recusal of judges with potential financial interests in the outcome.

In 2006, two of the judges who heard the Reylas case -- J. Harvie Wilkinson and William B. Traxler -- recused themselves when the full 4th Circuit reconsidered a mountaintop removal appeal.

It was not immediately clear if any of the 4th Circuit's judges recused themselves before the panel that heard the Reylas case was selected.

In the majority opinion, Niemeyer found "no merit" to the allegation that the corps "misapprehended" the baseline conditions in Dingess Run when concluding it was a healthy stream without existing mining impacts.

Concerning conductivity pollution, Niemeyer wrote that the corps "grappled with the issue extensively" and "rationally" determined that "the connection between conductivity and stream impairment was not strong enough to preclude a permit."

In a concurring opinion, Wilkinson said that he found EPA concerns and questions about the current condition of Dingess Run "troubling" aspects of the corps' permit review. But, Wilkinson said, those issues were "not enough to reverse," the corps or Chambers.

"Of course, the judiciary is not a rubber stamp on agency action, and there are times when contrary evidence will either not support or will actively undercut an agency's decision," Wilkinson wrote. "But this is not one of those cases."

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


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