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Corps told to testify in mountaintop suit

Environmentalists and coalfield residents won their first victory Friday in a lawsuit which aims to curb mountaintop removal strip mining, court records showed.The Army Corps of Engineers was ordered by a federal judge to provide documents and testimony about its role in permitting strip-mine waste piles, called valley fills.Corps lawyers were also ordered to appear at a hearing before Chief U.S. District Judge Charles H. Haden II on Nov. 12.The hearing will focus on a motion filed by environmentalists seeking a preliminary injunction to stop the corps from permitting more valley fills.Old-time strip mining chipped away at hillsides to expose coal reserves. Mountaintop removal blasts off entire mountaintops to uncover coal veins. What's left of the mountaintops is dumped into nearby hollows and streams in waste piles known as valley fills.In mid-July, the West Virginia Highlands Conservancy and 10 coalfield residents filed a lengthy lawsuit which aims to rein in mountaintop removal mining.Among other charges, the suit alleges the corps has illegally permitted valley fills under the "dredge and fill" provisions of the Clean Water Act.The suit alleges that those permits are not allowed to be used for waste disposal activities, such as valley filling. If that is true, then valley fills must receive pollution discharge permits under a much more stringent section of the Clean Water Act.
Since the suit was filed, the corps has stopped issuing permits for valley fills.Joe Lovett, a lawyer for the plaintiffs, wants to question corps officials and review internal agency records about that decision.Lawyers for the corps asked for a ruling that agency officials did not have to provide depositions in the case, or open their internal records to public scrutiny.On Friday, U.S. Magistrate Jerry Hogg ruled that the corps had to allow the depositions and release the information that Lovett requested. The ruling is a legal victory for Lovett, because federal agencies rarely have to open themselves up for depositions in such cases.Hogg also scheduled a hearing before Haden for 9 a.m. Nov. 12 on Lovett's request for a preliminary injunction.The corps already agreed to a temporary, 60-day moratorium on issuing valley fill permits. That moratorium is scheduled to expire Monday. 
To contact staff writer Ken Ward Jr., call 348-1702.
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