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Haden asked to block all fill permits

Environmental group lawyers on Thursday moved forward with their request to have a judge block the Army Corps of Engineers from approving any new mountaintop removal valley fills.

Lawyers for the group Kentuckians for the Commonwealth, or KFTC, asked U.S. District Judge Charles H. Haden II for an injunction to halt all new Corps permits for fills.

Two years ago, Haden agreed the Corps had no legal authority to approve fill permits.

But at the time, the judge did not issue an order to block such permits. He had not been asked to do so.

Haden’s October 1999 ruling was overturned on appeal. But Thursday’s motion was filed in a case that does not present the same jurisdictional hurdles that prompted the 1998 decision to be thrown out.

“KFTC contends that the Corps has no legal authority under the [Clean Water Act] to issue permits to dispose of waste rock from surface coal mining activities in streams,” lawyers Joe Lovett, Jim Hecker and Joe Childers wrote in a motion filed Thursday afternoon in U.S. District Court in Charleston.

In the case, the Kentucky group’s lawyers want to block proposed Corps’ permits for a mountaintop removal operation that would bury six miles of Eastern Kentucky streams.

The case was filed in federal court in Southern West Virginia, because the Corps’ district office is located in Huntington. Federal regulators and industry lawyers sought to have the case moved elsewhere, but Haden declined to do so.

Under Section 404 of the federal Clean Water Act, the Corps is allowed in certain circumstances to permit streams and wetlands to be buried by “fill material.”

In its regulations, the Corps defined “fill material” as material “used for the primary purpose of replacing an aquatic area with dry land or changing the bottom elevation of a waterbody.”

The Corps specifically said that fill material does not include any “pollutant discharged into the water primarily to dispose of waste.”

Those kinds of materials — such as wastewater from a chemical plant — must receive separate, and much more restrictive, permits from the U.S. Environmental Protection Agency.

Over the years, though, the Corps has approved hundreds of valley fills burying hundreds of miles of streams through Section 404 permits.

In July 1998, the West Virginia Highlands Conservancy sued the Corps to block such permits. Among other things, the group cited a 1989 ruling by U.S. District Judge John T. Copenhaver Jr. that coal mining spoil is waste material, not fill, and cannot be permitted under Section 404.

Six months later, in December 1998, federal government lawyers settled that part of the lawsuit. They agreed to more rigorous review of Section 404 permits, and promised to conduct a detailed study of mountaintop removal’s environmental effects. exchange, the Conservancy dropped its argument that the Corps cannot approve fills under Section 404 permits.

In his October 1999 ruling, Haden addressed the issue anyway.

“The court finds and concludes that overburden or excess spoil, being a pollutant and waste material, is not ‘fill material’ subject to Corps’ authority under Section 404 of the [Clean Water Act] when it is discharged into waters of the United States for the primary purpose of waste disposal,” the judge wrote.

“The Corps’ 404 authority to permit fills in the waters of the United States does not include authority to permit valley fills for coal mining waste disposal.”

At the time, the Conservancy had not asked for an injunction to block Corps permits. The group had settled that part of its case.

Since then, EPA and other agencies have missed a December 2000 deadline to complete their study of mountaintop removal.

And in April 2000, EPA and the Corps released a proposal to rewrite the definition of “fill material,” and head off legal challenges to mountaintop removal.

In August 2001, the Kentucky citizens group filed its own mountaintop removal case. They are represented by some of the same lawyers who handled the Conservancy’s case.

The case specifically seeks to block a permit for Beechfork Processing Inc. in Martin County, Ky.

In the motion filed Thursday, the citizen group lawyers said, “without an injunction, Beechfork will resume cutting trees, blasting and excavating rock, destroying wildlife habitat and filling streams with mining spoil.”

The motion said that EPA studies have found that “surface mining significantly alters terrestrial ecology” and that “the more headwater streams in a given watershed which are filled, the more difficult it will be to protect the aquatic ecosystems downstream.”

EPA studies, the motion said, have found that stream-filling in four Appalachian states totals 563 miles, with 331 miles in Kentucky.

“EPA found that, for West Virginia alone, current surface mining activities encompass about 120,000 acres of land, and new and proposed surface mining activities may potentially impact an additional 130,000 acres of land, 96 percent of which is forested,” the motion said.

Lawyers for the Corps now have 14 days to respond to the motion. Lawyers for the Kentucky Coal Association, AEI Resources Inc. and Pocahontas Development intervened in the case, and also have 14 days to respond.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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