Judge Blocks Massey Permit

Full Hearing Is Scheduled for Stream Fill 

Waste fill would pollute the Blue Branch, which flows into Hominy Creek, a high-quality trout stream.

KEN WARD, JR.
Charleston Gazette (WV)
April 6, 2004

A federal judge on Monday temporarily blocked a permit for a new Massey Energy Inc. preparation plant waste fill.

The move could kick into gear the latest round of courtroom battles over the burial of streams by the state's coal industry.

U.S. District Judge Joseph R. Goodwin ordered the Army Corps of Engineers to suspend the Massey permit for 10 days.

Goodwin said he wanted the Nicholas County stream Massey proposed to bury to be spared, at least until he can hold a full hearing on the matter.

"The stream cannot be repaired once it's filled in," Goodwin told lawyers during a hearing in his chamber Monday afternoon.

He scheduled a further hearing for April 12 on the Ohio Valley Environmental Coalition's request for a more lengthy injunction.

On Monday, the issue was a relatively small fill where Massey subsidiary Green Valley Coal Co. would bury about 430 feet of a stream with preparation plant waste.

Through their broader case, environmental group lawyers want to stop the burial of hundreds of miles of streams based on permits intended only for activities that cause "minimal" environmental harm.

TLPJ Environmental  Enforcement Director Jim Hecker

In October, lawyers Joe Lovett, Jim Hecker and John Barrett sued the corps in another of a series of legal attacks on mountaintop removal mining.

They say that the agency improperly approves valley fills through "nationwide" or "general" permits. Instead, they say, coal operators should have to obtain individual permits.

Under the federal Clean Water Act, individual permits cover specific activities and require a detailed review of the project's environmental impact.

Nationwide permits cover categories of similar activities. The corps spells out the general conditions that a particular category of activity should meet. Then, companies seek authorization for specific projects. If they promise to meet the general conditions, their projects are authorized with much less review than individual permits.

Nationwide permits are intended -- and allowed -- only for categories of activities that "will cause only minimal adverse effects when performed separately, and will have only minimal cumulative effects on the environment."

Because mountaintop removal "will result in the destruction of hundreds of miles of streams, and hundreds of thousands of acres of forests, the adverse effects are necessarily more than minimal," their complaint stated.

Still, the corps almost always approves mountaintop removal and other coal industry fills through a nationwide permit called Nationwide 21. Lovett and Hecker want that to stop.

Since the case started, lawyers have filed various preliminary motions. Coal industry groups sought to intervene. Along with the industry, the corps asked Goodwin to throw out the case.

On Monday, environmentalists sought an emergency ruling from Goodwin on the Green Valley permit.

In their initial lawsuit, Lovett and Hecker had included Green Valley's Blue Branch Refuse Fill among a long list of waste disposal fills they were concerned about.

Green Valley hoped to get rid of its preparation plant waste by dumping the material into an unnamed tributary of Blue Branch. Blue Branch flows into Hominy Creek, a high-quality trout stream.

Before the state Surface Mine Board, the Hominy Creek Preservation Association is challenging state approval of the Green Valley proposal. A hearing is scheduled for Wednesday.

Later, the corps indicated that it would force Green Valley to obtain an individual permit for the Blue Branch fill.

But then, the corps on March 25 approved part of the Blue Branch proposal through a nationwide permit.

Under this approval, Green Valley could bury 431 feet of the Blue Branch tributary.

The state Department of Environmental Protection, which also approved the partial Green Valley proposal, said it would "allow additional operational area" for the company while the corps processes the larger permit.

In legal papers filed Monday, environmentalists alleged that the corps illegally split the filling into two permits to avoid including the smaller fill in the more thorough review of the total project.

They also told Goodwin that, in other parts of the country, various corps nationwide permits are allowed only for projects that would affect less than 300 linear feet of stream. In Appalachia, the coal industry is subject to no such clear limits, they told the judge.

"The corps may not continue to treat Appalachian streams and forests as though they are less important than those in the rest of the nation - especially since our forests are the most diverse and productive temperate hardwood forests in the world and our free-flowing streams hold the region's future," the environmental group lawyers wrote in a brief.

Bob McLusky, a lawyer for Green Valley, said that the company needs the smaller fill soon. Green Valley is running out of other places to put its preparation plant waste, McLusky said.

Without the permit, McLusky said, the company would shut down the plant and two deep mines "very soon." Between 110 and 150 workers would be laid off, he said.

Goodwin agreed that the company was "in pretty dire straits" and needed the permit.

But, he said, that was no reason to allow the corps to evade "what is otherwise proper procedure" in its permit reviews.

"What I'm most concerned about is that the corps determined that this area deserved an individual review," Goodwin told McLusky.

"They must have had a good reason," the judge said. "Now, you rely on being able to pull out a discreet part."

To contact staff writer Ken Ward Jr., use e-mail or call (304) 348-1702.