Goodwin asked to enforce rule on valley fills
A federal judge has been asked to step in and order proper enforcement of his own ruling to block the streamlined permitting of mountaintop removal valley fills.
On Friday, the Ohio Valley Environmental Coalition asked U.S. District Judge Joseph R. Goodwin to hold the Army Corps of Engineers in contempt of Goodwin’s July 8 ruling.
In a nine-page court filing, lawyers for the coalition said a recent agency status report “shows that the corps is violating the court’s injunction on a systematic basis.”
“The corps’ report makes it clear that its noncompliance is even more serious than plaintiffs feared when they moved for clarification in late August 2004,” wrote coalition lawyers Joe Lovett and Jim Hecker. “The failure to comply with the injunction is another demonstration of the corps contempt for the rule of law.”
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 of acres of forest, or 11.5 percent of the regional study area.
In his July 8 ruling, 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 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.”
In an Aug. 31 ruling, Goodwin declined a request by the environmentalists that he clarify his ruling to block such an interpretation by the corps.
At the time, the judge said that 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.”
In a Nov. 24 status report filed with Goodwin, corps lawyers revealed that they have decided that valley fills can go forward if companies had started other work — such as pond-building or site preparation — at the same mining complex on July 8.
“By using this standard for commencement, the corps has allowed new valley fills to be constructed if the mine operator merely began site preparation, built a sediment control pond, or dropped a clod of dirt into a stream anywhere on the mine site for any reason prior to July 8, 2004, even if the mine operator had not yet placed any fill material within the footprint of the valley fill,” Lovett and Hecker wrote in their Friday court filing.
“The plain meaning of the court’s injunction is that commencement of construction is determined by construction of the valley fill or impoundment itself, not some other activity such as site preparation, or the construction of a sediment pond, road crossing or culvert,” they wrote. “The only reasonable interpretation of the court’s order is that valley fill construction begins when fill material is placed in the footprint of the valley fill.”
Lovett and Hecker asked Goodwin to declare that the corps is in contempt of court, and order the agency to block any valley fills projects where the fill itself had not been started on July 8.
They also asked the judge to force the corps to submit, within five days, a status report that lists specific information about the operations the corps has inspected in response to Goodwin’s order.
They also asked the judge to fine the corps $10,000 for every day that the agency does not comply with the order.
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.