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Judge weighing decision on Alpha mine permit

HUNTINGTON, W.Va. -- Citizen groups lawyers on Thursday urged a federal judge to block a Logan County mountaintop removal coal mine, saying unqualified government permit reviewers wrongly ignored scientific findings that clearly show growing damage to water quality from such operations.

Joe Lovett, lawyer for the Ohio Valley Environmental Coalition, said the U.S. Army Corps of Engineers did not properly consider water pollution expected from the Highland Reylas mine proposed by Alpha Natural Resources.

"The corps has neglected its duty," Lovett told U.S. District Judge Robert C. Chambers during a 2 1/2-hour hearing in Huntington.

Chambers called the hearing for final arguments from lawyers for citizen groups, the government and Alpha, following a four-day trial over the 635-acre permit near Ethel.

Alpha hopes to employ about 100 people for six years of mining, and then create a 235-acre site with paved roads and utilities that could be used for temporary housing during flooding and other emergencies. The mine, though, would bury about 2 1/2 miles of streams beneath a valley fill and associated runoff-control structures.

During the trial, citizen groups presented as expert witnesses a series of the nation's top scientists who have authored peer-reviewed papers that link increased levels of sulfates in mining runoff with biological impairment of waters downstream from mountaintop removal sites.

Lovett told Chambers that government and industry witnesses did not disprove those studies, and said no peer-reviewed papers have challenged their conclusions.

"The science all points in the same direction," Lovett said. "Their own experts admitted it. It's undisputed."

Alpha lawyer Bob McLusky argued that a previous ruling by the 4th U.S. Circuit Court of Appeals instructs Chambers to defer to the corps when the agency determines mining proposals will not adversely impact water quality.

But Lovett noted the decision also said such deference is only required when agencies are relying on "the reasonable opinions of their own qualified experts."

In this instance, Lovett said, the corps' own lead permit reviewer testified at trial that she didn't consider herself an expert on whether mining operations are causing water quality damage.

"No qualified person reviewed the record," Lovett said."[The corps] doesn't have any qualified experts here."

C.J. Morris, a lawyer for the corps, said it "wouldn't be reasonably practicable for the U.S. government to have an entire staff of experts" to review various issues raised in coal-mining permits. "It's not a reasonable requirement," Morris said.

Chambers said he hopes to issue a ruling within two weeks.

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


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