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Judge refuses to block Alpha mine during appeal

CHARLESTON, W.Va. -- A federal judge said Thursday he would not block an Alpha Natural Resources mountaintop removal mine while citizen groups appeal the permit's approval to the 4th U.S. Circuit Court of Appeals.

U.S. District Judge Robert C. Chambers said the Ohio Valley Environmental Coalition was not likely to win its appeal of his earlier decision not to overturn a Clean Water Act permit the U.S. Army Corps of Engineers approved for the project.

"While the court acknowledges that the applicable science in this case was disputed but tends to favor the plaintiffs, the court also found that the corps adequately considered the material before it when making its decision regarding the permit," Chambers wrote in a 13-page decision.

Chambers did, however, extend a previous stay of mining at Alpha subsidiary Highland Mining's Reylas Surface Mine in Logan County for two weeks, to give citizens time to ask the 4th Circuit for an injunction while a full appeal is heard.

In an Aug. 10 ruling, Chambers said scientific evidence clearly shows mountaintop removal is damaging water quality and aquatic life downstream from mining operations. However, the judge said a previous appeals court ruling tied his hands, forcing him to defer to the Corps of Engineers' permit approval.

Chambers made clear he was bound by a 2009 ruling in a case involving Aracoma Coal Co., in which the 4th Circuit said he overstepped his authority in throwing out four permits issued by the corps.

While the ruling by Chambers applies specifically to the Alpha permit, it also sets a standard for how future permit decisions might be made.

In seeking an injunction pending their appeal, environmental group lawyers had argued that they didn't have to show they were likely to win on appeal if they could instead show there was a serious legal question in their appeal. Chambers, though, said current law in the 4th Circuit still requires a showing of likelihood of success.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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