Environmentalists seek ruling in Kentucky fill case

Environmental group lawyers are wasting no time in seeking a ruling in a lawsuit aimed at curbing mountaintop removal in Kentucky.The lawyers want to expand a West Virginia court order that banned a streamlined process for obtaining new mining permits.On Friday, lawyers for the Kentucky Riverkeeper and other groups filed a motion for a preliminary injunction or summary judgment ruling against the U.S. Army Corps of Engineers. They sought the ruling from U.S. District Judge Jennifer B. Coffman in Lexington, Ky.“Kentucky’s streams should not suffer from the same type of filling activities that are illegal in West Virginia,” the lawyers wrote in court papers.Since last July, corps officials in West Virginia have been blocked from streamlining approval of new mountaintop removal valley fills.In West Virginia, coal companies must go through detailed, individual permit reviews when they propose to bury streams with waste dirt and rock.But in Kentucky, the corps continues to approve new valley fills through much less rigorous “general” or “nationwide” permit authorizations.In mountaintop removal, coal operators blast off entire hilltops to uncover valuable, low-sulfur coal seams. Leftover rock and dirt — material that used to be the mountains — is shoved into nearby valleys, burying streams. A 2003 draft study by federal regulators found that 1,200 miles of Appalachian streams have been buried or otherwise “directly impacted” by valley fills between 1992 and 2002. That 41/2-year study found that past, present and future mining in the region could destroy 1.4 million acres of forest, of 11.5 percent of the study area.Like the West Virginia case, the Kentucky lawsuit questions the corps’ historic practice of approving valley fills through a Clean Water Act authorization called Nationwide Permit 21, Or, NWP 21. Under the law, such permits are supposed to be used only to approve categories of activities that, cumulatively, would have minimal environmental effects.In a July 8 opinion, U.S. District Judge Joseph R. Goodwin in Charleston ruled that the corps had never concluded that valley fills caused only minimal adverse impacts.Without such a finding the judge said, the corps cannot use NWP 21 for any mining permits.The Bush administration and several coal industry groups have appealed Goodwin’s ruling to the 4th U.S. Circuit Court of Appeals in Richmond, Va.
Legal briefs originally were due in early February, but government and industry lawyers have sought delays at least three times.Briefs are now due Friday, but an oral argument has yet to be scheduled.
Since Jan. 1, the corps has approved seven new mining projects in West Virginia through the more thorough individual permits, agency officials said Monday.Over the past year, coal production in West Virginia is up about 7 percent, according to the U.S. Department of Energy.In late January, the Riverkeeper, Kentuckians for the Commonwealth and the Kentucky Waterways Alliance filed a lawsuit similar to the West Virginia case.The groups are represented by Lexington lawyer Joe Childers, Joe Lovett of the Appalachian Center for the Economy and the Environment, Jim Hecker of Trial Lawyers for Public Justice, and Brent Bowker and Amanda Moore of the Appalachian Citizens Law Center.Since March 2002, the corps in Kentucky has issued NWP 21 authorizations for 54 coal mines, according to court records. Those 54 mines would strip 55 square miles of land.They include 191 valley fills that would bury 35 miles of streams.
More than 20 other requests for permit authorizations are pending, environmental group lawyers said in court papers.In their Friday filing, the lawyers asked Coffman to block any new NWP 21 authorizations. They also asked the judge to suspend corps approval for more than 50 other mining operations where valley fills have not yet started.“This injunction would not stop all coal mining,” the lawyers wrote.“Mining can continue, because existing valley fills will contain space for placement of additional fill material,” they wrote. “As a result, if mining companies want to build additional valley fills, they will have time to apply to the corps for individual permits.”
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