WASHINGTON, DC, June 10, 2002 (ENS) - The Bush administration is appealing a federal court ruling challenging mountaintop mining permits that allow the dumping of mine wastes into streams and valleys.

In May, U.S. District Court Judge Charles Haden II in Charleston, West Virginia ruled against the practice for a second time. He decided that all permits issued by the Army Corps of Engineers to allow mining waste to be discharged into waterways are inconsistent with the Clean Water Act, and therefore illegal.

Haden also ruled that the new regulations signed by the Corps and U.S. Environmental Protection Agency (EPA) May 3 to legalize this practice are not within those agencies' authority under the Clean Water Act and contrary to both the letter and the spirit of the law.

In its appeal, filed by the Justice Department, the Bush administration warned that Haden's ruling "casts a tremendous cloud of uncertainty over all future coal mining in Appalachia."

Mountain top mine. Material must be removed from the top of a hill carefully to avoid disturbing valleys and towns below. (Photos courtesy Mountaintop Mining Lookout Group)

An appeals court overturned Haden's previous ruling against mining waste discharge. In April, a federal appeals court overturned Judge Haden's ruling barring coal mining companies from dumping mining debris into most streams and rivers. The ruling, based on who has jurisdiction over state mining rules, was considered a major setback for opponents of a technique known as mountaintop removal mining.

The 4th U.S. Circuit Court of Appeals in Richmond agreed with the state's argument, but returned the case to Judge Haden's court with instructions that he dismiss it so that it could be filed in state court.

In this latest appeal of Judge Hayden's second ruling, lawyers for the Justice Department asked the judge to restrict the scope of his ruling, by clarifying that it "should be read as not applying nationwide or to activities other than coal mining." The agency also asked that Haden suspend his ruling pending the results of the administration's appeal.

According to the Justice Department, Haden's ruling could mean that "companies will almost certainly suspend future coal mining projects in the region, lay off existing workers and abandon plans for hiring new ones.

The ripple effects of such actions would be felt throughout the region, with devastating implications not only for the tens of thousands of people directly employed by the coal mining industry, but the many thousands of other people who live there," the Justice Department argued.

A valley fill in progress. Mining waste from the mountaintop is being removed to fill the valley below.

Haden ruled that Section 404 of the Clean Water Act prohibits valley fills by mountaintop removal coal mines unless they serve a constructive purpose. His ruling would bar the issuance of U.S. Army Corps of Engineers permits for such fills unless they are part of a larger land development plan.

The Justice Department's appeal included sworn statements from several mining officials and industry representatives.

William Grable, executive director of the Kentucky Coal Council, said Haden's ruling "will have a severe and irreparable effect on the economy of the state, but will be felt more heavily in the counties where coal is extracted and employment is most dependent upon it being mined."

The coal mining industry is also expected to file an appeal against Haden's ruling.

In July 1998, the West Virginia Highlands Conservancy and a group of West Virginia residents who live near coal mines filed a lawsuit charging that the state was not properly enforcing mining regulations which require a 100 foot buffer zone between mining activities and streams.

Judge Haden determined that state regulators had used loose interpretations of environmental laws to allow the waste dumping in established streams that are supposed to be protected by buffer zones. The laws do not cover streams that flow only after rains and snow melts.

Mountaintop removal mining involves shearing off the tops of mountains with explosives to get at the underlying low sulfur coal. Mining wastes are then bulldozed into surrounding valleys and streams.

"This method represents the most modern surface mining technology and the most efficient method of recovery in the wise use of West Virginia's mineral wealth," writes the West Virginia Coal Association, Inc. in an article on the industry group's website.

"The impact of his ruling would have essentially prohibited better than 90 percent of all the valley fills existing or proposed in West Virginia," said Charleston attorney Benjamin Bailey, who successfully argued the state's case before the Court of Appeals last December. "Without the ability to create those valley fills, most of West Virginia's surface mines and underground mines could not exist."

Copyright Environment News Service (ENS) 2002. All rights reserved.