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Both sides looking at mine permit ruling

Federal regulators and coal industry officials began Monday to try to sort out the latest federal court ruling aimed at tougher restrictions on mountaintop removal mining.

Environmental and citizen groups, meanwhile, said that Friday’s ruling will force major changes not only in how mining permits are reviewed, but in how mining itself is performed.

“We think that this ruling has the potential to change the way mining is done in central Appalachia,” said Joe Lovett, a lawyer for the groups that challenged U.S. Army Corps of Engineers’ permitting practices.

In Friday’s ruling, U.S. District Judge Robert C. Chambers technically blocked only four permits the corps had issued for subsidiaries of Massey Energy. But the decision is certain to impact dozens of other permit applications pending at the corps’ regional office in Huntington.

Neither corps officials in Huntington nor their lawyers with the U.S. Department of Justice returned phone calls Monday.

Dave Hewitt, a corps media spokesman, said the agency has no real answer for mining companies that want to know how Chambers’ ruling will affect their pending applications.

“We need to take this thing under review,” Hewitt said. “It would be premature to say we’re going to do this, that or the other.”

Chambers ruled that the corps had not fully evaluated the potential environmental damage from the four Massey permits before approving them in 2005 and 2006.

In an 89-page opinion, the judge said that without a complete evaluation, the corps could not rightly conclude that none of the permits would cause significant damage to streams and forests.

Chambers cited an “alarming cumulative stream loss” to mining valley fills, and said that the corps “does not explain how the cumulative destruction of headwater streams already affected by mining in these watersheds will not contribute to an adverse impact on aquatic resources.”

The judge declined to order the corps to perform a more detailed study, called an Environmental Impact Statement, on each and every mining permit. But he sent the four Massey permits back to the corps. The agency was ordered to conduct a more thorough analysis to determine if the impacts are more than minimal, the trigger for requiring an EIS.

In a key finding, Chambers also concluded that there is no scientific proof that the practice of “mitigating” mining damage by turning sediment ditches into man-made streams actually works.

“The scientific community is skeptical of the likelihood that important headwater stream functions will actually be achieved in manmade streams,” the judge wrote.

When it approves mining permits, the corps generally admits that the damage could be great. But the agency has argued that company mitigation plans offset that damage, and allow permits to be approved.

“It is apparent on the surface that this will have broad-reaching effects,” said Chris Hamilton, vice president of the West Virginia Coal Association, which intervened in the case. “It could potentially delay the processing of all of the permits that are before the corps.”


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