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New Massey permit blocked till full hearing

CHARLESTON, W.Va. -- A federal judge on Tuesday temporarily stopped Massey Energy from beginning work on a 2.5-mile valley fill that's part of a new mountaintop removal permit in Logan County.

U.S. District Judge Robert C. Chambers ordered Massey not to bury the stream at its Reylas Surface Mine site near Ethel until he could hold a more detailed hearing on a lawsuit filed by the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy.

The judge scheduled a hearing, to consider a request for a longer-term injunction, for March 22 in Huntington.

Chambers noted that without a temporary order to stop the valley fill, the company could have proceeded with mining activities, meaning the environmental damage citizen groups were concerned about would be done before their case was heard.

"Once these streams are disturbed, they are destroyed, and they can't be re-created," the judge said during a telephonic hearing Tuesday afternoon.

Chambers allowed Massey to continue work it had already started on a sediment pond at the site. The judge ordered Massey to provide a report on the status of the pond within three days.

Environmental groups, through, were most concerned about emergency action by the court to stop Massey from starting work on the valley fill under a Clean Water Act "dredge-and-fill" permit issued Friday by the U.S. Army Corps of Engineers.

Massey said the 635-acre mine would eventually employ about 100 people for about six years, producing more than a million tons of coal a year. The company plans to create a 235-acre site with paved road and utilities that could later be used for temporary housing during flooding and other emergencies.

Mike Snelling, Massey's vice president for surface mining, said the mine would "both provide good-paying jobs in Logan County" and "create a one-of-a-kind site that will help local residents affected by flooding and other emergencies."

During Tuesday's hearing, citizen group lawyer Joe Lovett told Chambers the Corps had not adequately considered potential water quality impacts of the mine, including selenium runoff and other pollution that would increase the electrical conductivity of downstream waters.

"This valley fill is just too big," Lovett said. "You cannot build a 2.5-mile-long valley fill and not elevate conductivity above levels that cause significant degradation."

Corps lawyer C.J. Morris said she had not had time to review the permit in any detail, but argued that the government was being much more thorough in examining mining proposals.

"The public certainly has an interest in seeing that these projects, after proper review by the appropriate agencies, can move forward and are not held up forever," Morris said.

Bob McLusky, a lawyer for Massey, argued that citizen groups have little chance of winning a final ruling to block the permit. McLusky cited a ruling by the 4th Circuit Court of Appeals that overturned an earlier decision by Chambers blocking four other Massey strip-mining permits.

Lovett responded that the science detailing mining's water quality impacts has advanced significantly since Chambers heard that case in October 2006, with new research detailing significant impacts to downstream water quality.

Over the weekend, Rep. Nick J. Rahall, D-W.Va., had joined Massey in praising the Corps' approval of the company's permit, citing a backlog of mining proposals held up by tougher permit reviews instituted by the Obama administration.

"I am very pleased to see some progress being made and commend the Corps for working to find a balance that allows the mining to go forward while minimizing the environmental impact," Rahall said.

In a news release, the Corps said Massey had agreed to reduce the length of stream impacted by the mine by 400 feet.

But in their lawsuit, the citizen groups said the 13,743 linear feet of stream impacts listed in the Corps news release is actually more than 500 feet longer than the stream impacts listed in an agency public notice issued in March 2008.

That notice listed the total stream impacts as 13,174 linear feet. Corps permit documents actually list the stream impacts in the final permit as 13,478 linear feet -- a figure different from the agency's news release and the public notice.

Citizen groups noted in their lawsuit that the U.S. Environmental Protection Agency had issued letters outlining a variety of concerns about the Reylas mine proposal. EPA has not issued any written explanation of why it dropped those objections. A Corps spokesman said the EPA called his agency and signed off on the permit's approval.

Cindy Rank, mining chairwoman for the Highlands Conservancy, said she's concerned that the EPA is backing off its crackdown on mining pollution in response to political pressure that has increased since Republicans took control of the U.S. House.

"I'm just hopeful that the outlandish stuff that is going on in Congress doesn't negate all of the progress that we have made this past couple of years and stunt EPA's enthusiasm for doing the right thing," Rank said.

Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.

 


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