New York (Platts)--15Jun2007

In the most recent court decision in environmental groups' long-standing
battle to stop mountaintop mining, a federal district judge ruled that the
Army Corps of Engineers must protect and regulate streams leading to sediment
ponds under the Clean Water Act. 

Massey Energy is the parent company for the mining companies named in the
suit. In a statement on Thursday, Massey said it "does not believe the ruling
will affect its ongoing operations." But the opinion "may change the
permitting process, if not modified by the court or overturned on appeal. In
particular, the ruling may require operators to construct ponds closer to
fills or in some other manner in order to obtain permits for filing activity."

The ruling, issued Wednesday, continues that the Corps cannot authorize
discharges from valley fills into the streams as "secondary impacts" and
cannot allow pollutants to flow into streams unless the process is compliant
with the Clean Water Act. 

The case hinged on whether the stream segment connecting the valley fill to
the sediment pond is part of the "waters of the United States," and therefore,
regulated under the Clean Water Act, or is part of a "waste treatment system"
that is excluded from the CWA requirements. The Corps must issue permits for
CWA discharges but not for waste treatment systems. 

Judge Robert Chambers sided with the Ohio Valley Environmental Coalition and
others, which had filed for the summary judgment in the US District Court for
the Southern District of West Virginia. They argued against the waste
treatment system label. Defendants were the Corps and Aracoma Coal and Massey
subsidiaries. 

Chambers ruled that the waste treatment system exclusion is "inapplicable to
the stream segments below the valley fills and ... the Corps does not possess
authority to permit the discharge of pollutants into these stream segments
pursuant to the Clean Water Act." Massey declined to comment further.

The case is Ohio Valley Environmental Coalition, et al. vs. the Army Corps of
Engineers and Aracoma Coal, et al., civil action 3:05-0784.