Judge Holds Fast to Ban on Mining Permits

By Cat Lazaroff

CHARLESTON, West Virginia, June 18, 2002 (ENS) - The U.S. Army Corps of Engineers may not issue permits allowing rock and dirt from mountaintop removal coal mines to be disposed of in streams, a federal judge confirmed Monday. U.S. District Judge Charles Haden denied a request by the Corps that he lift his injunction against so called valley fill permits.

Haden issued the 53 page decision Monday after the Corps asked him to clarify his May 8 ruling in which he ruled that mountaintop mining permits that allow the dumping of mine wastes into streams and valleys are illegal under the Clean Water Act. The Corps asked Haden to stay his order to allow the agency time to appeal.

Mountaintop removal mining slices the tops off of mountains to reach the coal seams below. (Photo by Vivian Stockman. All photos courtesy Ohio Valley Environmental Coalition)

"That choice, however, between cheap mining and destruction of the nation's waters has been made by Congress," Haden added, concluding that the mining industry's argument that "these fills are required and all mines are dependent on them is demonstrably false."

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.

On May 3, the Corps and the U.S. Environmental Protection Agency (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.

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 ruled that section 404 of the Clean Water Act "was enacted for the purpose and with the effect of allowing disposal of only one type of pollutant or waste: dredged spoil," such as that produced during channel deepening in waterways.

That waste does not include overburden from mining operations, Haden said.

In Monday's ruling, Haden again ordered the Corps not to issue any more permits for valley fills unless they include a "constructive primary purpose" other than waste disposal.

Haden did make two minor changes to his May 8 injunction. He noted that the ruling applies only to the Corps' district office in Huntington, West Virginia, which oversees southern West Virginia and eastern Kentucky.

The Huntington office issued permits accounting for 87 percent of the stream length affected by valley fills in the year 2000 - about 85 miles of stream. Therefore, the ruling "necessarily will have substantial national impact," Haden wrote.

A valley fill in progress at a mine owned by Catenary Coal. (Photo by Charlie Archambaul)

However, Haden also wrote that his injunction covers a variety of activities other than mountaintop removal mining, including other forms of coal mining and any other activity that requires a Corps permit under the Clean Water Act.

Only stream fills "devoted to some useful purpose" can be permitted under Section 404 of the Clean Water Act, Haden stressed, not fills created "solely for disposal of waste."

Haden bolstered his argument with an example based on actions taken by Beech Fork Processing, the company whose valley fill permit was put on hold by the lawsuit filed by Kentuckians for the Commonwealth. The Kentucky Coal Association, a mining industry group, had argued that Beech Fork Processing would go out of business if it was not allowed to use valley fills to manage mining overburden.

On June 3, Beech Fork informed the Corps that it could mine its existing coal reserves without placing overburden in streams. Beech Fork now "proposes not to place spoil in jurisdictional waters of the United States, with the exception of ponds," the company told the agency.

Mountaintop removal mining surrounding Kayford Mountain in Boone and Kanawha counties in West Virginia. (Photo by Vivian Stockman)

"Beech Fork has confidence that it may be able to mine the entire reserve by placing fills with a constructive purpose in jurisdictional waters of the United States," the company told the Corps. The plan could cost the company "substantial sums of money," and Beech Fork would "like to operate as originally authorized," the company added.

"However, the company concedes: if the law requires mining spoil not be disposed of in waters of the United States, Beech Fork can comply and still mine the entire reserve," Judge Haden wrote. That admission "is a powerful substantiation of plaintiff's position and a clear recognition that waste disposal fills in national waters are not necessary to mine coal."

"Beech Fork, which originally proposed 27 valley fills, filling six miles of Kentucky streams," Haded added, "now acknowledges no waters need be filled except as justified by a constructive purpose. All parties agree that re-engineering and reconfiguring to generate creative alternatives to valley fill waste disposal require a fill by fill and mine by mine analysis."

"To stay the Court's injunction would be an invitation to coal operators like Beech Fork to save money by continuing their current waste disposal practices, filling miles of Appalachian streams in disregard of the statutory scheme," Haden concluded.

The coal industry has argued that Haden's ruling could essentially shut down the mining industry in Kentucky and West Virginia, leading to tens of thousands of layoffs. The industry is expected to ask an appeals court to suspend Haden's injunction.

Robert Kennedy Jr., who opposes mountaintop removal mining, emphasizes that many aspects of mountaintop removal are illegal. (Photo by Vivian Stockman)

After the hearings, the groups announced a new national campaign to challenge mountaintop removal mining. The press conference, hosted by the Waterkeeper Alliance, featured statements by Alliance president Robert F. Kennedy Jr. and a number of grassroots representatives affected by the mining process.

"The coal industry is motivated only by short term greed. It thrives through illegal practices that have allowed it to pass its costs on to the public," said David Rouse, member of Kentuckians for the Commonwealth, the group whose lawsuit prompted Haden's ruling.

Kennedy argued that mountaintop removal mining will permanently impoverish Appalachia.

"Big coal is treating the state as if it were a business in liquidation," Kennedy said. "Its executives make themselves rich by making other Americans poor and destroying America's great historical landscapes, our culture and our waterways."

Kevin Richardson, a Kentucky native and a member of the popular group the Backstreet Boys, testified last week at a Senate subcommittee hearing on mountaintop mining. (Photo by Vivian Stockman)

The Kentucky Riverkeeper is the 77th Riverkeeper program in Waterkeeper Alliance, a national pollution watchdog group founded by fishers and headed by Kennedy.

At last week's Senate subcommitee hearing, Senator Hillary Clinton, a New York Democrat, agreed to take a flyover of mountaintop removal sites with Richardson.