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Mining permit ruling tossed

RICHMOND, Va. - A federal appeals court on Wednesday reinstated streamlined permitting for mountaintop removal coal mines in West Virginia.

U.S. District Judge Joseph R. Goodwin last year revoked 11 permits issued by the U.S. Army Corps of Engineers under the Nationwide Permit 21 process, which is intended for activities that cause no more than minimal environmental damage.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously overturned Goodwin's decision, ruling that the corps complied with the Clean Water Act.

Corps spokesman Chuck Minsker said he had not seen the ruling and could not comment.

Coal officials in West Virginia and Kentucky hailed the ruling as a positive one for the industry.

"The coal industry prevailed in an extremely important court case today which upheld the ability of the Corps of Engineers to issue general permits for valley fills," said Bill Caylor of the Kentucky Coal Association, which intervened in the case with the West Virginia Coal Association and others. The ruling should "bear heavily" on a similar case pending in federal court in Kentucky, Caylor said.

In mountaintop removal mining, hilltops are blasted away to uncover coal seams and the leftover rock and dirt is dumped into valleys, burying streams. The mining process has buried about 1,200 miles of streams between 1992 and 2002.

Goodwin ruled that the permit process improperly "defines a procedure instead of permitting a category of activities," that it makes no provision for a public hearing and that the corps never concluded that the valley fills had only a minor environmental impact.

The appeals court disagreed on each point.

"The corps identified a category of activities, it determined that those activities would have a minimal environmental impact both separately and cumulatively, and it provided notice and opportunity for public hearing before issuing the permit," Judge J. Michael Luttig wrote.

He was joined in the ruling by Judge Paul V. Niemeyer and visiting U.S. District Judge Robert J. Conrad Jr. of North Carolina.

The legal challenge was led by the Ohio Valley Environmental Coalition.

"To me, it's appalling - what can I say?" said Cindy Rank, mining chair for the West Virginia Highlands Conservancy. The group has been fighting the mining process for nearly a decade.

"I think Judge Goodwin made a difficult and very important ruling, and for the 4th Circuit to turn it over is just beyond words," she said.


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