Federal judge sends Massey permits back for reconsideration

Washington (Platts)--27Mar2007

A federal judge ruled that the Army Corps of Engineers' Huntington District
issued four permits dealing with valley fills in West Virginia without fully
determining if the permits would hurt the environment.

Under the ruling issued late on March 23, Judge Robert Chambers remanded the
permits for the Massey Energy subsidiaries to the Corps for reconsideration.
This case is one of several in which environmental groups are seeking to limit
or stop the Corps' permitting process for valley fills. Both sides have won in
various courts and on appeal over the past several years.

The permits were issued to: Alex Energy's Republic No. 2 mine in Raleigh
County; Aracoma Coal's Camp Branch mine in Logan County; Elk Run Coal's Black
Castle mine and Independence Coal's Laxare East mine, both in Boone County.

In his 89-page decision, Chambers found that the Corps "failed to comply with
the CWA [Clean Water Act] and NEPA [National Environmental Policy Act] when it
issued the permits and the findings of no significant impacts [FONSI]."

"The CWA permit cannot be issued unless the Corps complies with the 404(b)(1)
Guidelines and with NEPA in making a FONSI or performing an EIS [Environmental
Impact Statement]. The Corps did not adequately address certain issues as to
the impacts of the mining activity on the environment," Chambers wrote.

The Corps "has not met its obligations under the CWA and NEPA," Chambers
wrote. According to Chambers, both require the Corps to take a "hard look" at
the effects the permits would cause. The Corps "has not assessed the full
impacts of destroying headwater streams within a watershed."

"In sum, the Corps has failed to take a hard look at the destruction of
headwater streams and failed to evaluate their destruction as an adverse
impact on aquatic resources in conformity with its own regulations and
policies," the judge wrote.

"Without a proper understanding of the impacts to the headwater streams, the
Corps has not fulfilled its legal obligation to take a hard look at the
environmental impact of the proposed action," the judge wrote.

-- Regina Johnson, regina_johnson@platts.com