Haden Won’t Suspend Valley Fill Ruling

By KEN WARD, JR.
Charleston Gazette (W.Va.)
Tuesday, June 18, 2002

A federal judge declined Monday to suspend a ruling that blocks mountaintop removal valley fills that are not proposed as part of a post-mining development plan.

Chief US District Judge Charles H. Haden II rejected arguments from the coal industry and the Bush administration that the ruling would bring economic ruin to the region.

In a detailed, 54-page ruling, Haden said that the argument that “these fills are required and all mines are dependent on them is demonstrably false.”

“[Coal] operators believe valley fills are desirable because they provide the cheapest method of waste disposal, at least in terms of the industry’s internal economics,” the judge wrote.

“That choice, however, between cheap mining and destruction of the nation’s waters has been made by Congress.”

On May 8, Haden ruled that the Clean Water Act generally prohibits coal operators from burying streams with waste dirt and rock from mining sites.

The judge ordered the US Army Corps of Engineers not to issue any more Clean Water Act permits for valley fills not proposed with “constructive primary purpose.”

In the case before Haden, the group Kentuckians for the Commonwealth challenged a specific mountaintop removal permit in Martin County, Ky. The group also asked Haden to block the Corps from issuing any new valley fill permits.

Lawyers for the Corps and the coal industry had asked Haden to suspend his ruling while they appealed it to the 4th US Circuit Court of Appeals in Richmond, Va.

The judge agreed to only two relatively minor changes to his injunction.

First, Haden said that the ruling applies only to the Corps’ district office in Huntington. That office covers Southern West Virginia and eastern Kentucky and handles most mountaintop removal permits.

Second, the judge said that the ruling does not apply to material dredged from streams, then returned to those streams.

In another way, Haden made clear the broad scope of his May 8 decision.

The judge said that his injunction applies not just to mountaintop removal, but also to other types of coal mining and to any activity that might seek a permit from the Corps.

In last month’s ruling, Haden concluded that Section 404 of the federal Clean Water Act gave the Corps very limited authority to approve the dumping of waste into rivers and streams.

Congress granted the Corps the authority to issue Section 404 permits “for fills devoted to some useful purpose,” but not “solely for disposal of waste,” the judge repeated in Monday’s opinion.

In dismissing Bush administration and coal industry fears about coalfield economic collapse, Haden cited a recent change in mining plans submitted by Beech Fork Processing, the company whose permit was the subject of the citizen group lawsuit.

On June 3, Beech Fork told the Corps that it could mine all of its coal reserves without dumping waste rock and dirt into streams.

Haden called this change of plans “a powerful substantiation of [the citizen group’s] position and a clear recognition that waste disposal fills in national waters are not necessary to mine coal.”

“Beech Fork, which originally proposed 27 valley fills, filling 6 miles of Kentucky streams, now acknowledges no waters need to be filled except as justified by a constructive purpose,” the judge wrote.

“To stay the court’s injunction would be an invitation to coal operators like Beech Fork to save money by continuing their current waste disposal practices, filling miles of Appalachian streams in disregard for the statutory scheme.”

Haden wrote that a less drastic action than a court injunction against the Corps would be inadequate, because the Corps and the U.S. Environmental Protection Agency were pushing to change federal rules to legalize valley fills.

“Where regulators were pushing ahead rapidly to change the rules, without regard for the purposes, policy, history or language of the act itself, a declaratory judgment appeared as insubstantial as a headwater stream on a surface mine site,” the judge wrote. “Simply put, an injunction is necessary to halt the illegal practice.”

Lawyers for the Corps and the coal industry could now ask the 4th Circuit to suspend Haden’s ruling pending an appeal.

Neither officials from the Department of Justice, which represents the Corps, nor the Kentucky Coal Association, the main industry part to the case, could be reached Monday afternoon.

In Monday’s ruling, Haden concluded that his May 8 decision “is not extreme, unreasonable or irrational,” as Corps lawyers had argued.

“It would be unreasonable and in stark variance with [Clean Water Act] policy to allow the nation’s waters to be filled and destroyed solely to dispose of waste,” Haden wrote.

“Contrary to the government’s argument, it is also not unreasonable or irrational to allow identical materials, such as rock and dirt, to be placed in waterways for one (constructive) purpose, but not another (waste disposal),” the judge added.

“As plaintiff notes, site-development fills are often necessary to support socially beneficial and water-dependent development,” he wrote. “Roads, malls, post-mining land use development, and numerous other uses may require fills. In the environment/social tradeoff, some diminution or loss of the nation’s waters is accepted in exchange for socially beneficial development.

“But if streams or rivers are filled for no purpose but waste disposal, the waste dumper destroys environmental values without supplying the social benefit in return.”

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