HUNTINGTON -
A U.S. District Court judge has ruled in favor of Alpha Natural Resources in a case where citizen groups claimed a permit should be denied because permit reviewers had not taken relevant scientific findings into account.
Plaintiffs in the case — the Ohio Valley Environmental Coalition and others — claimed the Highland Mining Co.'s Reylas surface mine permit was issued without regard to the hazard to water contamination in light current science. U.S. District Judge Robert C. Chambers said in a order issued Aug. 10 that he would defer to regulators "despite scientific evidence contrary" to their decision to permit the Logan County mine.
OVEC filed the suit against the U.S. Army Corps of Engineers and others in 2011.
"Miles of West Virginia streams are being buried under valley fills covering hundreds of acres, dramatically altering the landscape and streams throughout southern West Virginia," Chambers wrote in the Aug. 10 ruling. "The (Environmental Protection Agency) and the (West Virginia Department of Environmental Protection) have been at loggerheads in evaluating these impacts and taking action to strike the balance between the state's economic interests in mining and its obligation to protect West Virginia's environment."
The Army Corps of Engineers decision was not arbitrary, capricious or an abuse of discretion, Chamber said. Without proof of those factors, Chamber writes, the court, by precedent, should defer to agency action.
"At the week-long evidentiary hearing held in this case, the court heard testimony from expert witnesses called by the plaintiffs and by Highland," a court footnote states. "The Corps called the employee who authored the combined decision document as a witness, but called no experts of its own. Throughout the testimony, the parties and the court were careful not to admit post-permit evidence in support of the merits of plaintiffs' claims, though post-permit scientific data was offered and used for impeachment and rehabilitation of witnesses."
The Highland Mining Co., a subsidiary of Alpha, originally applied for the necessary permits for the surface mine in September 2007. The company wanted to discharge fill material in Reylas Fork of Bandmill Hollow Creek, a tributary of the Guyandotte River.
The U.S. Army Corps of Engineers reviewed the permit in March 2009, and the agency was ready to approve it, but the EPA sent a letter to Corps objecting to the permit. According to the EPA, the permit "is likely to cause or contribute to an excursion from the state's water quality standards downstream resulting in an impairment of the aquatic life use, and that the direct and cumulative impacts from this and future mines will be persistent and permanent and cannot be sufficiently or effectively compensated through the proposed mitigation."
The Corps added some of the EPA's requested permit conditions to the proposal, including eliminating about 400 feet of impacts.
Citizen groups, lead by the Ohio Valley Environmental Coalition, quickly opposed and challenged the permit.
Chambers' full ruling can be read here: http://www.wvsd.uscourts.gov/district/opinions/pdf/Memorandum%20Opinion%20and%20Order.pdf
All content © Copyright 2000 - 2013 WorldNow and WVNS. All Rights Reserved.
