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Goodwin declines to clarify mountaintop removal ruling

U.S. District Judge Joseph R. Goodwin on Tuesday declined to clarify his July ruling on mountaintop removal coal mining.

But in an 11-page order issued Tuesday, Goodwin also cautioned the U.S. Army Corps of Engineers to properly enforce that ruling. “I trust that the corps will enforce my unambiguous orders,” the judge wrote.

Goodwin also declined a coal industry request to reconsider his decision and turned down an effort by one company, CONSOL of Kentucky, to intervene in the case.

The judge ruled in on a series of motions filed by both sides, in some cases without allowing lawyers to respond to the other parties’ legal argument.

In his original July 8 decision, Goodwin said 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 ordered the corps not to issue new Clean Water Act permits for valley fills in Southern West Virginia without individual reviews. He ordered the agency to suspend permits for valley fills “on which construction has not commenced as of today, July 8, 2004.”

Since the ruling, though, some coal industry officials — including Massey Energy President Don Blankenship — 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.

Last week, the Ohio Valley Environmental Coalition alleged in court papers that the corps was allowing coal operators to violate Goodwin’s ruling.

Joe Lovett, a lawyer for the coalition, asked Goodwin to clarify his ruling because “coal operators may be acting unilaterally to fill streams in accordance with their self-interested and improper interpretation of the court’s order.”

In Tuesday’s order, Goodwin said that he saw no reason to clarify his previous decision.

But, the judge also wrote that, “I will merely remark that the corps, as the administrative agency authorized by Congress to regulate discharges of dredged and fill material into the waters of the United States, is entirely capable of carrying out my unambiguous orders.

“Construction on particular valley fills and surface impoundments had either begun by July 8, 2004, or it had not,” Goodwin wrote.

The judge added that, “if the corps’ workload will increase significantly as coal operators seek individual permits, that problem is best solved by the executive branch of government.

“The corps might reduce the delay to coal operators by, for example, devoting more resources and personnel to the review of individual permit applications,” Goodwin wrote. “However, the corps chooses to address the problem, I cannot allow projects to proceed under [general permits] when the Clean Water Act clearly requires a greater degree of scrutiny than those projects have yet received.”

In refusing CONSOL of Kentucky’s request, made last week, to intervene in the case, Goodwin said that the company waited too long to seek to intervene.

Goodwin also rejected a request by various coal industry groups that the judge reconsider an Aug. 13 order that broadened his original decision to apply to any valley fills that had not started prior to July 8.

In a motion filed Friday, coal industry lawyer Bob McLusky had complained that the Aug. 13 order’s “retroactive effect will have a significant and inequitable impact on the mining industry in West Virginia.

“By forcing many dozen operators simultaneously to seek individual permits, the court has practically guaranteed that the corps’ administrators will be unable to process applications for individual permits in a timely manner, thereby forcing the closure of some operations,” McLusky wrote.

McLusky added that Goodwin “has — perhaps unintentionally — unfairly visited the threat of economic ruin on many coal operators who have expended millions of dollars on equipment and leases in reliance on their corps authorizations.”

In response, Goodwin said he found it “necessary to emphasize for the third time now” that the general permit used by the corps “is unlawful.”

“It is true that [general permit] holders were operating pursuant to what they thought were lawful authorizations, but [the general permit] itself was never lawful,” the judge wrote.

Goodwin wrote he could have ordered suspensions of all corps general permits for coal mining operations, but that he “limited the injunction in this case to the Southern District of West Virginia” to comply with a 2003 ruling by the 4th U.S. District Court of Appeals.

“As of July 8, 2004, anyone with an interest in coal mining in the Southern District of West Virginia was on notice that [the general permit] does not comply with the Clean Water Act and that the corps was ordered to suspend [general permit] authorizations,” Goodwin wrote.

“The exception I made for particular projects on which construction had begun by that date was merely that — an exception,” he wrote. “Proponents of other projects may now apply for individual permits.”

The Bush administration has not announced whether it will appeal the ruling on behalf of the corps.

Goodwin’s ruling is available online at www.wvsd.uscourts.gov/district/opinions/.


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