Court Clears Path for Mountaintop Mining

     (CN) – The 4th Circuit overturned a ruling on Friday requiring the Army Corps of Engineers to take a harder look at the environmental impact of “mountaintop removal,” a method of coal mining that involves blasting peaks to tap underlying coal deposits.




     The method, pioneered in the Appalachians, creates masses of removed soil called “spoil,” which is hauled or pushed into nearby valleys during mining. Once the coal has been extracted, mining companies try to reconstruct the mountaintop with some of the spoil. But because the blasted material is less stable than it would be in its compacted natural state, miners end up leaving large amounts of excess spoil in the valleys, creating a “valley fill” that buries streams.
     Mining companies then divert the water to sediment ponds, which are supposed to catch and settle sediment from the valley fill. However, the steep Appalachian terrain often requires mining companies to channel runoff from the valley fill through short stream segments. Mine operators can seek Clean Water Act permits for runoff that will have “minimal adverse effects” on the environment. For fill activities that don’t meet the requirements, the Corps issues permits on a case-by-case basis. Environmental groups challenged the Corps’ decision to issue permits to four West Virginia mining companies: Aracoma Coal Co., Elk Run Coal Co., Alex Energy Co. and the Independence Coal Co. The permits allowed them to create 23 valley fills and sediment ponds, affecting more than 13 miles of streams.
     The Ohio Valley Environmental Coalition, the Coal River Mountain Watch and the West Virginia Highlands Conservancy said the Corps should have examined more closely the permits’ impact on water quality, ecosystems, habitats, species survival and diversity, and the aesthetic value of the peaks.
     In March 2007, U.S. District Judge Chuck Chambers ordered the Corps to rescind some of the permits until the agency conducted further review. In a separate order, Chambers granted the plaintiffs’ request for a declaration that the stream segments are properly characterized as “waters of the United States.”
     The federal appeals court in Virginia reversed, saying the Corps had the authority to permit the fill activities, including channeling runoff through stream segments. Judge Gregory said the Corps’ decision was “reasonable in light of the CWA and entitled to deference.”
     The court also reversed the order on the water-classification issue.
     The ruling is a blow to environmentalists and a boon to the coal industry, which claims that most of the nearly 130 million tons of coal produced through mountaintop mining generates electricity for 24.7 million U.S. customers.
     Judge Michael dissented in part, saying the mitigation measures imposed by the Corps would not bring the mining companies into compliance with federal environmental standards.
     Since the lower court’s ruling, the Corps has issued five new CWA permits. The 4th Circuit “decline[d] to judicially notice them,” citing the ongoing dispute over how to interpret them.

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