A federal judge on Wednesday canceled a hearing on a mountaintop removal lawsuit, after a regulatory agency agreed to hold off on issuing new permits.
Chief U.S. District Judge Charles Haden had planned to hear arguments today on an environmental group's request for an injunction to halt the Army Corps of Engineers' permitting new mountaintop removal operations.
At the same time, an Arch Coal Inc. subsidiary alleged in court documents that the corps had already issued a permit for its new mountaintop removal mine on Pigeonroost Branch in Logan County.
Earlier this week, lawyers for the West Virginia Highlands Conservancy argued in court filings that corps officials agreed they did not have authority under the Clean Water Act to permit valley fill waste piles for the mines.
The admission by corps officials, made in legal depositions, could have made it difficult for the agency to defend itself in a hearing before Haden. Instead, the corps and the conservancy filed a joint motion asking Haden to cancel today's hearing. As part of the deal, environmentalists dropped their motion for a preliminary injunction. The corps promised to give five days' notice before approving new permits, so environmentalists would have time to go back to court.
Currently, strip mines must receive a number of federal and state permits. They must receive mining permits from the state Division of Environmental Protection, water pollution permits from DEP and the U.S. Environmental Protection Agency, and a permit from the corps.
In mid-July, the conservancy filed a lawsuit that alleged the corps didn't have authority to permit valley fills under the Clean Water Act's "dredge and fill" provisions. If that were the case, valley fills would have to be permitted under much more stringent EPA rules.
Arch Coal subsidiary Hobet Mining Inc. is waiting for corps and EPA approval for a 3,100-acre expansion of its Dal-Tex complex near Blair in Logan County.
In a letter to Haden on Tuesday, Hobet lawyers said they believed the corps had granted the permit by not acting on the permit application within 30 days of its being filed. Under corps rules, if the agency doesn't act within 30 days of receiving a permit application, the application is generally considered granted.
On Wednesday, Michael Gheen, chief of the corps regulatory branch in Huntington, wrote back to Hobet. Gheen wrote that Hobet actually submitted a revised permit on Dec. 4, so the 30-day clock started over, and won't run out until January.