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Citizens challenge Chambers on mine permit ruling

HUNTINGTON, W.Va. -- Alpha Natural Resources agreed to hold off work at a Logan County mountaintop removal mine for a little more than a week, to give a federal judge time to consider a request that he block the mine's permit pending a legal appeal.

Alpha lawyer Bob McLusky said the company would wait to start work under the Clean Water Act "dredge-and-fill" permit for its Highland Reylas Surface Mine until the end of the day on Aug. 27

The delay should give U.S. District Judge Robert C. Chambers time for a hearing next Thursday morning on the Ohio Valley Environmental Coalition's request for a temporary injunction.

A week ago, Chambers ruled against citizen groups who had alleged the U.S. Army Corps of Engineers was wrong to approve the Alpha permit for a 635-acre mine near Ethel.

Joe Lovett, a lawyer for the coalition and other environmental groups, asked Chambers to enjoin the corps' permit for the Alpha mine while his clients appeal to the 4th U.S. Circuit Court of Appeals.

"The public interest would not be served by allowing the irreversible destruction of important environmental resources before the judicial process has run its course," the citizen groups argued in a court filing. "Rather, the public interest supports maintaining the status quo ante, protecting the environmental resources while the judicial process continues to completion."

While the ruling by Chambers applies specifically to the Alpha permit, it also sets a standard for how other permit decisions might be made moving forward.

In his Aug. 10 ruling, Chambers said scientific evidence clearly shows mountaintop removal is damaging water quality and aquatic life downstream from mining operations. But the judge said a previous appeals court ruling tied his hands, forcing him to defer to the Corps of Engineers' permit approval.

Chambers made clear he was bound by a 2009 ruling in a case involving Aracoma Coal Co., in which the 4th Circuit said he overstepped his authority in throwing out four permits issued by the corps.

That 4th Circuit ruling is one of four decisions over the last decade in which the Richmond, Va.-based appeals court has overturned rulings by three different federal judges in West Virginia to curb mountaintop removal mining. Once considered the most conservative federal appeals court in the country, the 15-judge 4th circuit now has six new members appointed by President Obama.

In their court filing, citizen group lawyers argue, among other things, that Chambers was wrong to conclude that the corps correctly judged existing water quality downstream from the mine site as acceptable and able to absorb pollution from the operation.

The main stream in question, Dingess Run, is listed by the state Department of Environmental Protection as "impaired" and with a "poor" score on DEP's biological health testing system.

"It is simply impossible to square [the corps'] conclusion of good ecosystem health with the fact that the undisputed ... score in Dingess Run shows that its aquatic community is severely biologically impaired," the citizen group lawyers wrote.

The citizen group lawyers also noted that Chambers found they their scientific experts presented "unrefuted evidence" and "compelling" testimony which "thoroughly convinced" Chambers that large-scale surface mining damages downstream water quality and aquatic life. But, the judge ruled for the corps, even though the agency "attempted to deny" such science, without presenting any expert testimony of its own to support the permit issuance, the citizen group lawyers said.

Citizen group lawyers said that Chambers took the 4th Circuit's 2009 ruling requiring judges to defer to reasonable agency permitting decisions too far.

"This means that a court must usually defer to the agency's qualified experts, and need not resolve disagreements among experts," the citizen group lawyers wrote. "Conversely, it means that a court need not defer if the agency has not relied on any experts or expertise for its decision, and if there is no disagreement among qualified experts on the relevant issue. This latter scenario is what occurred here."

Government and company lawyers have until early next week to file responses to the citizen group injunction motion.

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


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