EPA officials, for example, expressed concerns about the Alpha and Loadout permits at issue before Chambers, but did not use their authority to actually stop the corps from approving the permits. The situation is different from the EPA's veto of the Spruce Mine -- which was overturned by a federal judge -- because the EPA could have blocked the Alpha and Loadout operations before the corps approved the permits. In the Spruce case, the Obama EPA stepped in after the permit was allowed to go forward -- despite serious EPA concerns -- by the George W. Bush administration.
Now, citizen groups are heading back into court to try to block more corps permits, an effort that has seen some success, at least at the federal district court level in West Virginia.
However, Harvey pointed to a 2009 ruling by the 4th U.S. Circuit Court of Appeals, in which a panel of judges overturned Chambers' previous decision to block four mining permits issued by the corps.
Harvey noted that the 4th Circuit said approval of water-quality certifications for strip-mining permits, a matter handled by the DEP, should generally be "conclusive." Harvey argued that, given that ruling, the DEP's sign-off that the Highland Reylas Mine would not violate water-quality rules would generally be controlling -- meaning the corps had to go along with it, and Chambers would have to defer to the corps and the DEP.
The one exception would be if the EPA objected to the state's water-quality certification, Harvey said.
The EPA did raise concerns about water-quality issues with the Highland Reylas Mine, but Harvey argued that those concerns were raised as part of the EPA's enhanced mining permit review process that a federal judge in Washington, D.C., threw out as illegal in a lawsuit brought by the National Mining Association.
Harvey also argued that what citizen groups are really trying to do is challenge the DEP's approval of a water-pollution discharge permit for the Alpha mine. He said a U.S. Supreme Court decision involving an Alaska gold mine ruled that water-pollution discharge permits can't be indirectly challenged through lawsuits over separate "dredge-and-fill" permits issued by the corps.
Lawyers for citizen groups, Alpha and the corps were seeking a legal ruling that could narrow the issues for a trial on the Highland Reylas permit, scheduled to start May 8.
Chambers said he is likely to rule in favor of the corps and Alpha on the issue of whether a plan to mitigate any stream damage from the mine is adequate, but will allow a trial with detailed testimony on the broader issue of whether the corps properly considered any potential cumulative impacts of the Highland Reylas operation.
In the Loadout matter, the company agreed to delay the start of any mining operations until the judge could hold another hearing on that permit, probably on May 18.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.