One of several federal agencies that were sued last week for their role in permitting mountaintop removal coal mines agrees with a key argument of the lawsuit.
Army Corps of Engineers officials don't believe mountaintop removal waste piles, called valley fills, can be permitted under the "dredge and fill" provisions of the federal Clean Water Act.
"They're not under our jurisdiction as far as we're concerned," said Rodney Woods, regional program manager for the corps' Great Lakes and Ohio River Division in Cincinnati.
If that's the case, it means that all valley fills must meet state and federal water quality standards - something many experts believe is impossible. It could also mean that none of the valley fills approved in West Virginia had proper permits, according to lawyers involved in the suit.
"They have no permits," said Joe Lovett, a lawyer with the nonprofit firm Mountain State Justice, which represents several of the citizens who filed a federal court lawsuit to curb mountaintop removal. "It means all valley fills are illegal."
Mountaintop removal is different from strip mining. Years ago, surface mines stripped layers of coal from the sides of mountains. Mountaintop removal uses huge earth-moving machines to cut off entire hilltops and reach valuable low-sulfur coal seams underneath. The earth and rock removed from these mountaintops - mine operators call it spoil - are then dumped into nearby streams in waste piles called valley fills.
Mountaintop removal has become the dominant form of surface mining in West Virginia.
During the 1980s, the state issued 44 permits for mountaintop removal. Those permits covered a total of 9,800 acres. In the last three years alone, the state Division of Environmental Protection has permitted at least 38 new mountaintop removal mines that cover a total of nearly 27,000 acres, according to state records.
Valley fills are a major part of mountaintop removal operations. Mining companies say they need the fills to have somewhere to put mountains moved to reach coal. Putting the mountains back is a costly, impractical - and often impossible - proposition, according to most industry officials.
Environmental groups, however, believe that valley fills violate the federal Clean Water Act, a landmark law passed more than 25 years ago to preserve and protect water quality in the nation's rivers and streams.
In a 48-page lawsuit filed Thursday in U.S. District Court in Charleston, the West Virginia Highlands Conservancy and 10 residents of Boone, Logan and Mingo counties ask for a court order that state and federal regulators have improperly permitted hundreds of valley fills.
The suit states that a review of 48 large mountaintop removal permits issued by DEP since 1991 shows those mines included more than 200 valley fills that would fill streams with more than 2 billion cubic yards, or about 3.5 billion tons, of rock and earth that used to be mountains.
Under the Clean Water Act, pollutants - whether rock and dirt or toxic chemicals - can be discharged into streams only if the discharger receives a water pollution permit issued by the U.S. Environmental Protection Agency or a state regulatory agency. The law, however, also includes a provision which allows the Corps of Engineers to issue permits to fill in streams or wetlands for roads, shopping centers and other "dredge and fill" activities.
For years, valley fills have been permitted by the corps as one of these dredge and fill activities. These permits are called 404 permits for the section of the Clean Water Act that outlines their authorization.
But in a 1989 decision, U.S. District Judge John T. Copenhaver defined strip mine spoil as "waste." Copenhaver's ruling was challenged by the coal industry, but upheld by the 4th U.S. Circuit Court of Appeals in 1990.
Under federal law and regulations, 404 permits cannot be used to allow activities that are strictly for the disposal of waste materials. They can only be used to allow the disposal of fill to create dry land or to elevate a body of water.