A federal judge on Sept. 13 refused to grant an injunction that would have halted work by an Alpha Natural Resources (NYSE: ANR) subsidiary at the Reylas strip mine pending an appeal by environmental groups of an adverse Aug. 10 decision by the judge.
The plaintiffs, including the Ohio Valley Environmental Coalition, had in March 2011 challenged in court the decision by the U. S. Army Corps of Engineers to issue an individual Section 404 Clean Water Act permit to Alpha’s Highland Mining to discharge fill material into streams for the purpose of conducting surface coal mining activities at the Reylas surface mine in Logan County, W.Va. The challenge was filed in the U.S. District Court for the Southern District of West Virginia, where it became one of several valley fill permitting cases handled in recent years by Judge Robert Chambers.
In April 2011, the court granted the Corps’ motion to remand the permit to the agency for reconsideration. In September 2011, the Corps reinstated the permit, and this litigation resumed. All parties then filed cross-motions for summary judgment. The court granted partial summary judgment for the Corps in a short order on May 1. The court granted summary judgment on the remaining cross-motions on Aug. 10. Plaintiffs then appealed to the U.S. Fourth Circuit Court of Appeals, and filed a motion with Chambers for an injunction pending appeal and an emergency injunction pending a ruling on this motion.
At an Aug. 23 hearing, Highland agreed to refrain from any mining activities under the Section 404(b) permit in this case until after Aug. 27. The court heard argument on Aug. 23 and entered an order extending the stay of any mining activities under the 404(b) permit in this case until decision is made on the merits by the court regarding plaintiffs’ motion. Chambers in his Sept. 13 ruling rejected the injunction request, but did give the plaintiffs 14 extra days on the existing stay so they can seek further relief during that time at the court of appeals. The judge noted that Highland has stated that valley fill activities will begin within months, likely before plaintiffs’ appeal is decided, unless enjoined by the court.
“In the affidavit Highland submitted, a mining executive explained that the Reylas mine would produce coal suitable for the thermal coal market,” the judge wrote. “The affidavit goes on to describe the current volatility of that market and the uncertainty as to when it might have customers for this expected production. These circumstances, standing alone, make the likelihood of actual harm speculative. However, Highland also points out that the market’s uncertainty requires Highland to act quickly, if prospective purchasers are identified, to make a commitment to supply its customers. To that end, Highland would begin stream filling in the next few months so that mining could commence rapidly if the market improves. Having now completed the lengthy permit review period, obtained regulatory approval including reconsideration, borne the delay of litigation, and then prevailed on the merits at the district court level, Highland has a legitimate claim that a further stay constitutes harm.”
The West Virginia Department of Environmental Protection database shows that the state mine permit for Reylas was first issued in 2008 at 635 acres in size, since reduced to 627 acres. The mine is permitted to work the Stockton, Clarion and 5 Block seams and associated seam splits.