Army Corps Faces Motion of Contempt Over Valley Fills

By J.R. Pegg

WASHINGTON, DC, December 7, 2004 (ENS) – The U.S. Army Corps of Engineers has continued to grant coal companies permission to dump mining debris and waste rubble in the valleys and streams of Appalachian Mountains under a streamlined permit process ruled illegal by a federal judge.

The federal agency says its actions are a fair interpretation of the ruling, but environmentalists disagree and last week filed a contempt of court motion against the Corps.

The dispute centers on how the federal agency’s regulation of a controversial practice known as mountaintop removal mining.

Valley fills like these have buried hundreds of miles of West Virginia streams. (Photo courtesy West Virginia Rivers Coalition)

The massive amount of debris and waste rubble is bulldozed into surrounding valleys and streambeds.

Environmentalists sued the Army Corps for granting permission for West Virginia valley fills under a streamlined, nationwide permitting process known as Nationwide Permit 21.

The plaintiffs argued that use of the general permit was in essence a rubber stamp for massive coal mining operations and thus a violation of the Clean Water Act.

Mountaintop removal mining has destroyed more than a thousand miles of waterways in West Virginia alone as well as thousands of acres of forests across Appalachia.

In a ruling issued on July 8, U.S. District Court Judge Joseph Goodwin agreed with the environmentalists and determined the agency should increase its scrutiny of valley fills and issue permits for specific sites rather than using Nationwide Permit 21.

Goodwin ordered the agency to revoke previous authorization for 11 valley fills and to block authorization for operations where construction of valley fills and surface impoundments had not begun prior to July 8, 2004.

But in a status report filed with court last month the Corps said it has authorized at least 22 mining operations to proceed with valley fills.

These operations are legal, according to the agency, because the companies had started preparatory activities – such as pond building, road construction and land clearing – prior to Goodwin’s order.

The agency was unavailable for comment on its status report or the contempt motion.

The environmental groups, who told Goodwin in August that the Corps was ignoring the ruling, contend that the Corps has illegally permitted new valley fills in defiance of the judge’s order.

“The Corps and the administration obviously have no regard for the nation's environmental laws,” said Vivian Stockman, project coordinator for the West Virginia based Ohio Valley Environmental Coalition, which filed the motion along with Natural Resources Defense Council and Coal River Mountain Watch. "They will apparently attempt anything to continue this culturally destructive and ecologically insane mining method."

A massive dragline, dwarfed by the huge scale of the operation, at work on a mountaintop removal operation near Kayford Mountain, West Virginia. October 19, 2003 (Photo by Vivian Stockman courtesy Ohio Valley Environmental Coalition)

But the case may soon be out of Goodwin’s hands – the Bush administration has appealed his ruling to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

No date for argument of the appeal has been scheduled.

The White House has been sympathetic to complaints from the coal industry that stricter regulation of mining operations will cost jobs and harm an industry that is still an important economic engine in Appalachia.

But the Bush administration has faced broad criticism for its policies to ease regulations on the industry – including the rule change that encouraged use of the Nationwide 21 Permit and a proposal issued in January to relax a federal rule that restricts mining within 100 feet of a stream, known as the buffer zone.

The proposed change would strike the existing rule and instead call on coal operators to prevent and minimize damage to streams in the buffer zone "to the extent possible."

Administration officials – and industry groups – say the revisions would provide greater clarity to industry and balance the economic and environmental needs of regions that use the technique.

Critics contend that change would give coal operators free reign to destroy the Appalachian environment.

"The government has allowed coal barons to abuse Appalachians for more than 130 years, and it is long past time to put a stop to it," said Julia Bonds, community outreach coordinator for Coal River Mountain Watch.