Judge asked to clarify valley fill ruling
A federal judge should clarify his mountaintop removal ruling to stop coal operators from illegally burying streams, lawyers for citizen groups said in court papers filed Tuesday.
The Ohio Valley Environmental Coalition and other groups asked U.S. District Judge Joseph R. Goodwin to define what it means for a company to have “commenced construction” of a valley fill.
Joe Lovett, a lawyer for the groups, said that the U.S. Army Corps of Engineers and other agencies are aware “that coal operators may be acting unilaterally to fill streams in accordance with their self-interested and improper interpretation of the court’s order.”
Lovett said that the corps and its lawyers have refused to provide citizens or the industry with an interpretation of the ruling or with guidance for complying with it.
“Instead, the corps appears to be inspecting operations at a very slow pace to determine what is happening at the operations,” Lovett said in an eight-page legal motion. “We believe that even these dilatory efforts would not be occurring without pressure from plaintiffs.
“It is difficult to understand what use these inspections serve in the absence of a clear interpretation of the order that the inspections are presumably meant to enforce,” Lovett wrote.
Corps officials could not be reached for comment late Tuesday afternoon. Agency officials had sent out letters to companies, giving them brief description of Goodwin’s ruling. Corps officials also had said that they planned to visit mine sites to determine if the ruling was being followed.
Previously, the state Department of Environmental Protection declined a corps request that it inspect mine sites to determine if Goodwin’s ruling was being violated.
Perry McDaniel, chief of the DEP Office of Legal Services, said that his agency did not want to get in the middle of a legal fight over the ruling’s meaning.
Also, the U.S. Office of Surface Mining refused a request that it do immediate inspections of several mine sites to determine if the ruling was being violated.
Roger Calhoun, director of OSM’s Charleston field office, said in a letter that the environmental groups had not provided “adequate proof of an imminent danger to the public health and safety or significant, imminent environmental harm by the mere allegation that streams are being filled without a [Clean Water Act] permit.”
In his July 8 ruling, Goodwin said that the corps could no longer approve mining 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 individual permit reviews when they propose to bury streams with waste dirt and rock.
The judge said that ordered the corps not to issue new Clean Water Act for valley fills without an individual reviews.
Goodwin ordered the agency to suspend those for valley fills “on which construction has not commenced as of today, July 8, 2004.”
Since the ruling, though, coal industry officials have argued that the order does not apply to sites where preparatory work — such as building sediment ponds at the foot of valley fill sites — has begun.
Specifically, Massey Energy President Don Blankenship — whose company held five permits targeted by the original lawsuit — told stock analysts on July 30 that Massey didn’t expect the ruling to stop its operations.
“While what constitutes the commencing of construction has not yet been specifically defined, Massey has started some construction on all five permits by the date of the ruling,” Blankenship told the analysts.
Asked by one analyst for further details, Blankenship said, “It varies a little bit, but in all cases we are at a minimum building ponds and in some cases we are dumping material into the fills.”
In his Tuesday filing, Lovett cited federal strip mine rules and previous corps guidance that he said shows that activities such as pond construction or site grubbing do not amount to the start of valley fill construction.
“Conflating all of these activities twists the regulatory scheme (and the English language) beyond the breaking point,” Lovett wrote. “All of these are separately defined activities; grubbing and pond construction are just part of a long chain of activities mining companies must accomplish before they may commence construction of valley fills.”