To contact staff writer Ken Ward Jr., call 348-1702, or e-mail kw...@wvgazette.com.
The U.S. Army Corps of Engineers on Thursday withdrew its proposed approval of the largest mountaintop removal permit in West Virginia history. In a letter to Arch Coal Inc., the Corps said there "was virtually no chance" the agency would win a federal court lawsuit over a Clean Water Act permit for the 3,100-acre mine. Corps officials said they were afraid a courtroom loss would set "an unfavorable precedent" that would make it difficult for other coal mining permits to be approved in West Virginia. Jim Hecker, a Trial Lawyers for Public Justice attorney representing environmentalists, said the letter means his clients could now move to drop their allegations against the Corps. Barring a further settlement, claims against the Division of Environmental Protection are scheduled to go to trial July 13. Corps Deputy District Engineer Brent D. Smith sent the letter Thursday evening, just hours after a federal judge unsealed records that indicated the Corps erred when it proposed to approve the Arch Coal permit. In a public court motion filed Tuesday, Steven Rusak, a U.S. Department of Justice lawyer representing the Corps, told Chief U.S. District Judge Charles Haden II that he had discovered "new material facts" that could affect the judge's ruling on a challenge to the permit for Arch Coal's proposed Spruce No. 1 Mine. At the same time, Rusak submitted a confidential letter to the judge. Haden unsealed the two-page letter late Thursday. "Specifically, we have come to learn that the certification of the administrative record appears to be erroneous in that a Corps decision-maker had not considered all relevant documents in the administrative record as a basis for concluding that a nationwide permit would be appropriate for the Spruce No. 1 Mine," Rusak wrote. "Additionally, we are concerned about the accuracy of an Environmental Protection Agency document in the administrative record," he wrote. The letter did not provide further details, and Rusak did not return calls. The administrative record is a collection of documents - permit applications, scientific studies and correspondence - upon which the Corps bases its permitting decisions. Under the law, the Corps must consider all relevant documents when it decides whether to issue a permit. Those documents are then included in the administrative record, and any challenge of a permitting decision is based on that record. In this case, Arch Coal subsidiary Hobet Mining Inc. wanted a Clean Water Act permit for five-square-mile mine near Blair, Logan County. Corps officials proposed to permit the operation under a general, nationwide permit authorization, rather than a more stringent individual permit. In March, Haden temporarily blocked the Corps from doing so. Environmental groups and coalfield residents had challenged the Corps' action, saying the mine must go through an individual permit application. Haden scheduled trial to start July 13 on the permit, and related allegations of a "pattern and practice" of illegal mountaintop removal permitting by the Corps and the DEP. Earlier this week, Rusak asked Haden to delay ruling on a number of procedural maneuvers in the case. In a court motion, Rusak said he needed until at least Monday to investigate the "new material facts" he had discovered. The motion did not elaborate on the matter. Among the maneuvers Rusak wanted to delay a ruling on was an effort by environmental group lawyers to depose Corps officials about any discussions the agency had with members of West Virginia's congressional delegation about the Arch permit. In a three-page order Thursday, Haden denied Rusak's delay motion. "The Court determines even a brief stay or extension of time would strain a very compressed pretrial schedule," the judge said. On Thursday, the Corps said it would not approve the Spruce Mine under a nationwide permit. The agency said Arch Coal will have to pursue a more stringent, individual permit. That could take up to two years, according to government officials. Nearly 400 miners stand to lose their jobs, at least temporarily, because Arch Coal has not submitted a permit that regulators and the courts will approve.