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Mining fills continue, despite judge’s order

The U.S. Army Corps of Engineers is allowing coal operators to begin new valley fills under a streamlined permit process, despite a federal court order that blocked such fills.

Corps lawyers have decided that the fills can go forward if companies have started other work — such as pond-building or site preparation — at the same mining complex.

Last week, the corps explained its actions in a status report filed with U.S. District Judge Joseph R. Goodwin.

In the report, the corps revealed that it is doing exactly what environmental-group lawyers had warned months ago that it would.

Under the corps’ interpretation, a company that has a permit for eight valley fills and has started site preparation work on one of them could complete all eight fills and not violate Goodwin’s ruling.

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 were 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 regional study area.

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 ordered the corps not to issue new Clean Water Act permits for valley fills without individual reviews.

Goodwin ordered the agency to “suspend those authorizations for valley fills and surface impoundments on which construction had not commenced as of today, July 8, 2004.”

The Bush administration and the coal industry have appealed Goodwin’s ruling to the 4th U.S. Circuit Court of Appeals in Richmond, Va. No date for argument of the appeal has been scheduled, a clerk said Thursday.

After Goodwin’s ruling, coal industry officials argued that the order did not apply to sites where preparatory work — such as building sediment ponds at the foot of valley fill sites — has begun.

In August, lawyers for the Ohio Valley Environmental Coalition asked Goodwin to clarify his ruling.

At the time, coalition lawyer Joe Lovett argued that federal and state mining law makes it clear that activities such as pond building do not constitute the start of fill construction.

“Conflating all of these activities twists the regulatory scheme [and the English language] beyond the breaking point,” Lovett wrote in court papers. “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.”

Goodwin declined to clarify his ruling.

In an Aug. 31 ruling, the judge said the corps “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.”

On Nov. 24, corps lawyers filed a 69-page report to update Goodwin on their progress in enforcing his ruling.

The corps told the judge that agency officials had sought progress reports and performed inspections at 73 mining sites that could be subject to the ruling.

At 22 of those sites, the agency said, no construction had begun. The corps ordered operators not to begin work at those sites until they obtained individual permits.

At 15 sites, the corps said, operators had completed their work.

At one Massey site, specifically targeted by environmentalists, work had begun. But, Goodwin specifically blocked that permit.

At 12 other sites, the corps said, agency officials “require further information” before they determine if Goodwin’s ruling applies.

In those cases, the corps said, companies might have started fills before they received final approval from the West Virginia Department of Environmental Protection. Corps officials are coordinating with the DEP to determine what to do about those sites, the corps told Goodwin.

The corps said that, at 23 other sites, companies had “commenced construction in waters of the United States as of July 8, 2004.”

“The construction in jurisdictional waters consisted of discharges of dredged or fill material to create sedimentation ponds, roads, stream relocations or culverting, the placement of drains for valley fills, and/or the placement of excess spoil material in jurisdictional waters,” the corps said in its report.


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