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Industry wants Haden to clarify valley fill ruling

Coal industry lawyers want Chief U.S. District Judge Charles H. Haden II to clarify his May 8 mountaintop removal ruling. They say it's not clear how much of a mining site a coal company must propose for future development in order for the company's valley fill to receive a Clean Water Act permit. Late Friday, industry lawyers filed papers to ask Haden to suspend his ruling while the industry and the federal government appeal it to the 4th U.S. Circuit Court of Appeals. They alleged that if the ruling is not suspended pending appeal, it would cause "severe irreparable injury ... potentially to all mining operations" in West Virginia, Kentucky, Ohio and Virginia. "As time marches on, the permitting process will grind to a halt, resulting in more and more mining shutdowns over time," the industry lawyers told Haden. "Delays in permitting now will cause disruptions in production and employment in the future that cannot be ‘made up' absent a stay of the current ruling." In their filing, industry lawyers also asked Haden to narrow his injunction to block only a single mining permit for Martin County Coal in eastern Kentucky. Last year, the group Kentuckians for the Commonwealth, or KFTC, sued the Army Corps of Engineers over the agency's permitting of mountaintop removal valley fills. The suit, filed in federal court in Charleston, challenged a corps' Clean Water Act permit for the Martin County Coal operation, which would bury 6 miles of streams beneath 27 valley fills. In their suit, lawyers for KFTC also asked Haden to block the corps from issuing any new valley fill permits. On May 8, Haden ruled that Section 404 of the Clean Water Act does not generally allow the corps to authorize valley fills. Haden ordered the corps not to permit new fills unless the fills were proposed for a "constructive primary purpose," not simply for disposal of waste rock and dirt. In their motion for clarification, industry lawyers said that "the scope of the injunction is unclear as it relates to valley fills at mine sites with variances from the duty to restore approximate original contour," or AOC. In his 47-page decision, Haden said that the corps may issue Section 404 permits "only for fills with a constructive primary purpose, not waste disposal." "Waivers to AOC requirements are available when land will be put to ‘an equal or better economic or public use,'" the judge wrote. "AOC waivers may be allowed for ‘industrial, commercial, agricultural, residential, or public facilit[ies] (including recreational facilities).'" In their motion, coal industry lawyers asked, "Does the injunction allow the corps' Huntington District to issue permits for valley fills at AOC variance sites regardless of whether a particular fill will itself serve a constructive purpose? "That is, while the Court suggests that valley fills at AOC variance sites are incidental to a constructive purpose (for example, an industrial park) not all of the fills necessarily are directly used to support buildings, parking lots of direct ‘uses,' but the filling is necessary as a way of creating flat land on mined property," the industry lawyers said.
"It is unclear whether the injunction prohibits fills at AOC variance sites that do not directly support a constructive use, but which are incidental to such uses." The coal industry motions were filed late Friday by lawyers from the Charleston firm Jackson & Kelly, the Huntington firm Huddleston, Bolen, Beatty, Porter & Copen, and the Louisville, Ky., firm Frost Brown.
The motions were filed on behalf of the Kentucky Coal Association and the coal company AEI Resources Inc. The association and AEI intervened in the KFTC case, which was filed against the Corps of Engineers. Industry lawyers said that "some Kentucky [mining] operations are facing imminent catastrophe if they are unable to obtain new Section 404 permits within one or two months." The mine specifically targeted by the lawsuit, now owned by Beech Fork Processing Inc., "will be facing a production shutdown if it is unable to obtain new or modified" permits by the first week of June, according to a sworn statement from Paul Horn, chief engineer for the company. Horn said that 35 people work directly at the operation. Another 425 people "employed at associated facilities will be at risk economically if Beech Fork cannot obtain" its permit, the industry lawyers said.
In Pike County, Ky., Sunny Ridge Mining Inc. "will be at risk of closure" within one month if it cannot obtain a new permit, according to a sworn statement by Steve W. Green, chief engineer for that company. A third Kentucky operation, 17 West Mining Inc., "will also be at risk of closure" within a month without a new permit, said Green, who is also chief engineer for 17 West. With their motion, coal industry lawyers submitted a sworn statement from Bill Raney, president of the West Virginia Coal Association. Raney polled his association's members about the potential impacts of Haden's decision on their operations. In his sworn statement, Raney did not name any of the companies he polled. At unidentified mining operations in Boone, Clay, Kanawha, Nicholas and Raleigh counties, more than 500 new or existing jobs could be at risk, Raney said. "To the extent that this Court's order is applicable to West Virginia, if pending coal mining permit or amendment applications cannot secure Section 404 permitting necessary for approved mine plans, cumulative production and job losses and severance tax loses will reach critical levels in the near term (over the next 6 to 18 months)," the industry lawyers said, citing Raney's sworn statement. Coal industry lawyers provided Haden with part of the federal environmental impact study on mountaintop removal. The portion they provided examined the potential impacts of outlawing valley fills in perennial and intermittent streams. It found that such a prohibition would "render 92.5 percent of the coal at the studied sites unmineable." "The court's new decision extends further and affects stream segments considered merely ephemeral," the coal industry lawyers said. That study, however, did not examine whether permit applications could be altered to propose postmining development on valley fill sites. Under a briefing schedule approved by Haden on Friday, lawyers for Kentuckians for the Commonwealth are due to respond today to the Department of Justice's previous motion for a suspension of the ruling. To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
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