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Appeals Court Upholds Mountaintop Removal Mining

By Cat Lazaroff

RICHMOND, Virginia, February 3, 2003 (ENS) - A federal appeals court has overturned a lower court ruling that would have barred most new permits for mountaintop mining in the Appalachian mountains. The decision was applauded by mining industry representatives, but environmental groups said the ruling could allow mining operations to continue to dump tons of waste into streams and valleys.

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Mountaintop removal mining slices off the upper layers of a mountain, hill or ridge (Two photos courtesy Mountain Mining Lookout Group)
On January 29, a three judge panel of the U.S. 4th Circuit Court in Richmond overturned a lower court decision that had barred the U.S. Army Corps of Engineers from issuing permits allowing coal companies to bury streams under mining wastes. These valley fills are most commonly used by mountaintop removal mining operations.

"We are deeply gratified," by the ruling, said Jack Gerard, president of the National Mining Association. "The livelihoods of thousands of hardworking people throughout Central Appalachia have been safeguarded by today's decision, and millions of homes and businesses that rely on coal based electricity are once again assured of reliable and affordable energy."

Critics of the decision said it will endanger the environment and the people of the Appalachian region where most mountaintop removal coal mining takes place.

"It is sad and scary that the court could have such a callous disregard for the lives and well being of people in the coalfields," said Patty Wallace a member of the nonprofit social justice group Kentuckians for the Commonwealth (KFTC), which filed the lawsuit that led to the lower court decision.

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As material is removed from the top of a hill, it must be moved carefully to prevent disturbing valleys - and towns - below (Photo courtesy Mountain Mining Lookout Group)
"While the judges and lawyers argue the technicalities and interpretations of the law, strip mining is destroying our mountains and streams and taking away a future for our children," Wallace added.

Judge Haden's decision did not revoke existing mining permits, like the one challenged by KFTC, which could allow the Martin County Coal Corporation to dump mining wastes in 6.3 miles of streams located at the heads of 27 Appalachian valleys. But Haden blocked the Corps from issuing any new permits, and reprimanded the Bush administration for issuing new rules that made easier for mining companies to legally dump such wastes into waterways.

In vacating Haden's ruling, the appeals panel said his decision was overly broad. "None of the parties sought a declaration that the new rule was illegal or inconsistent with the Clean Water Act," the court said, sending the case back to Haden to be reconsidered within the limits of the single mine permit challenged by the social justice group.

The panel reversed Haden's opinion that the Clean Water Act defines acceptable "fill material," which can be legally placed in waterways, as "material deposited for some beneficial primary purpose."

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Mountaintop removal mining can destroy entire hills and the surrounding valleys. (Photo by Vivian Stockman. Four photos courtesy Ohio Valley Environmental Coalition)
That definition would have made it illegal to dump mine rubble into streams. But the 55 page appeals court decision says that the U.S. Environmental Protection Agency (EPA) and the Corps were within their authority in issuing permits allowing mine rubble to fill entire valleys.

The appeals court's decision notes that the case was not decided based on "whether mountaintop coal mining is useful, desirable, or wise."

"It is disappointing that the appeals court is using procedural arguments and administrative wrangling to negate the intent of Congress to restore and protect the integrity of our nation's streams," said KFTC member Wallace.

Martin County resident and KFTC member Mick McCoy likened the ruling to "People who are willing to spit in the face of God and destroy our environment.

valley fill

A valley fill in progress at a mine owned by Catenary Coal. (Photo by Charlie Archambaul)
"Everything is being redefined - things like fill materials and streams - by the president, EPA and the court system. In the process what they are doing is redefining America. It's not just for people any more. In fact, it's not for people at all. It's for corporations," McCoy said.

Coal in the Appalachian Mountains is found in narrow seams separated by dirt and rock, which the mining industry calls overburden or spoil. In mountaintop removal mining, this overburden is blasted with explosives and bulldozed pushed out of way to expose the coal.

The dirt and rock is pushed into nearby valleys, where it chokes mountain streams.

In May 2002, the Corps and the EPA acknowledged that such valley fills are not legal under the Clean Water Act, explaining that the problem is one of differences between the two agencies' legal definitions of "fill material." The agencies released a new rule, "clarifying" and "reconciling" their definitions to make valley fills legal.

valley fill

A valley fill on the headwaters of White Oak Creek, near Artie in Raleigh County, West Virginia at a mine owned by AEI Resources, Inc. (Photo by Robert Gates)
Haden's May 2002 ruling castigated the Bush administration's move, stating that the two agencies had exceed their authority under the Clean Water Act.

"The Court holds that section 404 of the Clean Water Act does not allow filling the waters of the United States solely for waste disposal," wrote Haden in his decision. "Only the United States Congress can rewrite the Act to allow fills with no purpose or use but the deposit of waste."

The appeals court has now asserted that the EPA and Corps acted within their authority, and upheld the legality of valley fills.

KFTC said the appeals court decision is not surprising, as the Richmond court is considered one of the most conservative of all the U.S. federal appeals courts.

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Mountaintop removal mining surrounding Kayford Mountain in Boone and Kanawha counties in West Virginia. (Photo by Vivian Stockman)
"We are disappointed but not terribly surprised given the conservative court," said KFTC member David Rouse of Harlan County, whose family members have suffered property damages from mining operations.

The lawsuit was just one of many tactics KFTC has adopted in hopes of forcing the coal industry to reform its practices. The group said it is working on other lawsuits, is continuing organizing in coalfield communities, and will press for legislative solutions.

"It's too early to determine what our next action in this case might be, but we certainly hope that Congress will not only address but solve this problem by clarifying its intent through the passage of the Shays-Pallone bill or similar legislation," said Rouse.

In the last session of Congress, two representatives - Christopher Shays, a Connecticut Republican, and Frank Pallone, a New Jersey Democrat - introduced legislation to clarify that the intent of Congress in passing the Clean Water Act in 1972 was to prevent the dumping of waste in the nation's waterways. A spokesperson for Pallone's office said the representative plans to reintroduce similar legislation next month.

"We're tired of being a sacrifice area. Telling us that our streams aren't important, that our mountains aren't important, is the same as telling us that we, the people, aren't important," Wallace said.



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