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Corps wants out of mining suit

Lawyers for environmentalists and the U.S. Army Corps of Engineers asked a federal judge on Friday to dismiss the corps from a lawsuit over mountaintop removal.

The lawyers said there was no longer any reason to sue the corps, because the agency withdrew its proposed approval for Arch Coal Inc. to receive the largest mountaintop removal permit in West Virginia history.

On Thursday, the corps told Arch Coal it had "virtually no chance" to win a lawsuit over the permit and might set "an unfavorable precedent" by continuing the court battle.

In March, Chief U.S. District Judge Charles Haden II temporarily halted the corps from issuing the Clean Water Act permit for a 3,100-acre mine expansion of its Dal-Tex complex near Blair, Logan County.

Environmental group lawyers challenged the corps' decision to permit the mine under a blanket, nationwide general permit, rather than an individual permit requiring a more thorough review by regulators. General permits are supposed to be issued only for activities that would cause "minimal adverse environmental impacts."

Haden ruled in March that there was enough evidence to warrant a temporary injunction against the permit. The judge scheduled a full trial for July 13.

By withdrawing the nationwide permit, the corps will require a complicated environmental assessment of the Arch Coal proposal. Studies of the mine's potential impacts could take up to two years.

Late Friday, Arch Coal challenged the corps' authority to withdraw the blanket permit approval, The Associated Press reported.

Bob Bays, general manager of the St. Louis-based company's West Virginia operations, said that the corps did not follow proper procedures in revoking the permit.

In a letter to the corps, Bays said, federal administrative procedures require the corps to meet with Arch Coal "informally" and give the company opportunity to "furnish information which satisfies" the agency's concerns.

Arch Coal has said it plans to close Dal-Tex by July 23. Nearly 400 United Mine Workers members would lose their jobs.

Steven F. Leer, CEO of Arch Coal, issued a news release that said: "By reneging on the authorization of this permit, the Corps has condemned our employees to at least two years of unemployment.

"Further more, the Corps has acted in this manner without any explanation whatsoever about what prompted this reversal," Leer said.

"We consider it indefensible that a federal agency would act in such a manner, especially when the livelihoods of so many hard-working West Virginians and their families are at stake."

On Tuesday, Steven Rusak, a Justice Department lawyer representing the corps, sent a sealed letter to Haden stating that the agency may have erred in proposing the blanket permit.

In the letter, which Haden unsealed on Thursday, Rusak said that "a Corps decision-maker had not considered all relevant documents in the administrative record as a basis for concluding that a nationwide permit would be appropriate for the Spruce No. 1 Mine."

Rusak also said that the corps was "concerned about the accuracy of an Environmental Protection Agency document in the administrative record."

Rusak had filed a public court motion that asked Haden to delay several procedural maneuvers in the case because he had discovered "new material facts" that could affect the suit's outcome.

Among the maneuvers Rusak wanted to delay was a decision on whether environmental group lawyers could question corps officials about agency discussions about the Arch permit with members of West Virginia's congressional delegation.

Officials at the district corps office in Huntington said they did not know what documents or "new material facts" Rusak was talking about.

Brent Smith, the acting district engineer for the corps, declined to comment.

"We were given that letter by headquarters, the language of that letter, and we agreed with that, and that's why Mr. Smith sent the letter," said Steve Wright, a corps spokesman in Huntington.

"We do not know what [Rusak] is talking about."

On Friday, Rusak filed a motion joining in the environmentalists' effort to have the corps dismissed from the lawsuit.

If Haden approves that motion, the July 13 trial would focus only on other allegations that the state Division of Environmental Protection has approved dozens of mountaintop removal permits that don't comply with federal and state law.

The West Virginia Highlands Conservancy and a group of coalfield residents want Haden to order DEP to not issue permits that violate the law.

Also Friday, DEP lawyer Ben Bailey told Haden he may have a scheduling conflict on the July 13 trial date.

Bailey said he has a civil trial scheduled in Marshall Circuit Court, but that he had asked the judge there to postpone that trial.

To contact staff writer Ken Ward Jr., call 348-1702 or e-mail kw...@wvgazette.com.


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