Boone mine permit wrangling continues

HUNTINGTON — Maria Gunnoe has lived most of her life at her family homeplace, at the mouth of Big Branch near Bob White in Boone County.Gunnoe fished in the streams, played in the creeks and picnicked at family reunions on nearby Cazy Mountain.The last few years, Gunnoe has lived with flooding and water pollution that she blames on Magnum Coal’s mountaintop removal operation up the hollow.“It has devastated our property,” Gunnoe told a federal judge Wednesday.Gunnoe and the Ohio Valley Environmental Coalition want to block Magnum from continuing to mine. Company officials say they need a new valley fill, or the mine will close. Up to 219 workers could lose their jobs.On Wednesday, the coalition, Coal River Mountain Watch and the West Virginia Highlands Conservancy asked U.S. District Judge Robert C. Chambers for a temporary restraining order to block the mining.More than 100 people packed Chambers’ courtroom in Huntington. The group split, with miners on one side of the gallery and environmental activists on the other. More spectators lined the courtroom walls and spilled out into the hallway.The legal wrangling over Magnum’s Callisto Surface Mine is the most recent skirmish over the enforcement and ramifications of the latest federal court ruling on mountaintop removal.Environmental groups want to use Chambers’ decision to limit further damage from new mining operations. Coal operators are trying to find ways around the ruling, to continue mining until they can get an appeal decided by the 4th U.S. Circuit Court of Appeals in Richmond, Va. On March 23, Chambers concluded that the federal Army Corps of Engineers had not fully evaluated the potential environmental damage before approving four other strip-mining permits. Chambers noted an “alarming cumulative stream loss” to valley fills. The judge said the corps “does not explain how the cumulative destruction of headwater streams already affected by mining in these watersheds will not contribute to an adverse impact on aquatic resources.”Three weeks later, though, Chambers allowed Massey Energy to continue to dump waste rock and dirt into streams at three of those mines, because the company had already started operations there. Earlier this month, Massey asked Chambers to also allow operations to resume at the fourth mine covered by the judge’s original ruling.In a related case before U.S. District Judge Joseph R. Goodwin, environmental groups in May dropped a challenge to another Magnum permit after learning that the company had already buried part of the stream involved.In the Callisto Mine situation, Magnum officials had originally said they would not move into any new valley fills until after an appeal of Chambers’ March ruling was decided.
Two weeks ago, Magnum lawyer Richard Verheji told environmental groups that they planned to move forward sooner on at least one valley fill.The fill in question would bury 2,435 feet of a stream called Dry Branch, court records show.
Magnum official Mike Day testified Wednesday that the mine has run out of coal reserves and room to dump mining waste on other parts of its operations.The company needs to start preparing the new valley fill area in two to three weeks, Day said, or nearly 40 workers would lose their jobs in about two months.Day said the new valley fill would give the company space and reserves to operate for a year to 18 months.Without the new valley fill, the company could also end up shutting down an associated underground mine and coal preparation plant, Day said. In all, 219 jobs are at risk, he said.“These people and their families depend on these jobs to support their families and educate their children,” Day told Chambers.Legally, judges in such cases must undertake a “balance-of-hardship” test. Chambers is supposed to weigh potential environmental damage from continued mining against harm to the company if mining is blocked.
Bob McLusky, a lawyer for Magnum, said Day testified that state inspectors concluded the mining operation did not cause the flooding in Gunnoe’s community. Given that, McLusky said, any claim of harm from future mining is “speculative.”“The real harm is to the jobs of these folks here,” McLusky said, pointing to the miners in the courtroom.Corps lawyers sided with the company in court papers. The government added that a ruling to block the Callisto Mine “would impede energy production by eliminating nearly 13 million tons of low-sulfur content coal that would otherwise help satisfy the nation’s growing energy needs.”Joe Lovett, one of the environmental group lawyers, argued that potential economic harm would be only temporary. The company could always come back and mine the area later if it wins an appeal, Lovett said.“The costs of delays in mining operations are ‘purely economic harms’ that cannot outweigh the irreparable harm from the filling of streams,” Lovett wrote in court papers. “When the valley is filled, it can’t be undone.”Chambers did not immediately rule. The judge told the parties they could file more briefs next week, and he would rule the week after that.
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