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Goodwin expands ruling on permits for valley fills

A federal judge on Friday expanded his July 8 ruling that blocked the U.S. Army Corps of Engineers from approving mountaintop removal valley fills through a streamlined permit process.

U.S. District Judge Joseph R. Goodwin granted a request by the Ohio Valley Environmental Coalition to add six specific mining operations to the injunction.

Goodwin ordered the Corps to suspend Clean Water Act permits for the six operations if they had not commenced fill construction as of the July 8 date of his original ruling.

The six mining permits challenged in the latest filing by environmentalists included permits issued Feb. 2 to Consol of Kentucky Inc. for three mines in Mingo County; one issued May 24 to Road Fork Development Co.’s Rockhouse Branch Surface Mine in Logan County; one issued June 10 to Independence Coal Co.’s Glory Surface Mine in Boone County; and one issued June 29 to Alex Energy Inc. for its Robinson North Mine in Nicholas County.

Information on whether any of those operations had already begun fill construction was not immediately available late Friday.

Originally, Goodwin blocked the corps from issuing new fill permits through the streamlined process, but also blocked 11 other operations if they had not yet commenced fill construction.

Joe Lovett, a lawyer for the Appalachian Center for the Economy and the Environment, sought to block the other six. In a motion, Lovett said environmentalists learned of those permits’ approval only after filing their initial complaints.

“I am not inclined to allow discharges into waters of the United States pursuant to unlawful permits merely because those permits were either authorized, revealed to plaintiffs or brought to the court’s attention sometime after the plaintiffs filed their amendment complaint,” Goodwin wrote.

In his original ruling, Goodwin said the Corps could no longer approve valley fills through a streamlined permit process meant only for activities that cause minor environmental damage.

Rather than these “general” or “nationwide” permits, Goodwin said, coal companies must go through more rigorous individual permit reviews when they propose to bury streams with waste dirt and rock.

In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal seams. Leftover rock and dirt — the stuff that used to be the mountains — is shoved into nearby valleys, burying streams.

Last year, federal regulators issued a report that concluded that 1,200 miles of Appalachian streams have been buried or otherwise “directly impacted” by valley fills between 1992 and 2002. That 4 1/2-year study found that past, present and future mining in the region could destroy 1.4 million acres of forest, or 11.5 percent of the study area.

The Bush administration, which has made several moves to make it easier for companies to obtain mountaintop removal permits, has not issued a final version of the study.

In Friday’s ruling, Goodwin also said his ruling applies to a permit the Corps attempted to approve for a Massey Energy subsidiary, Green Valley Coal, in Nicholas County.

In a 10-page order, the judge said he blocked companies from fills that had not yet started on July 8 — as opposed to stopping operations that had already begun — to “provide relief to the plaintiffs and also preserve the mining industry’s ability to operate” while it applies for more detailed, individual permits.

Goodwin added that, when he issued his initial ruling, he was “not unmindful of the effect that my ruling might have on the mining industry.”

The judge has not yet been asked to take any action on a series of permits where environmental groups allege operators may be violating the July 8 ruling.


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