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Energy and Environment Monitor

Mining and Reclamation

Anti Mining Group Urges Fourth Circuit to Override Clean Water Act Permit Shield

          The plaintiffs in an important Clean Water Act (“CWA”) case filed their reply brief with the Fourth Circuit on January 28, 2020.  We have previously written about the ruling in Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, here and here.  The case is now on appeal before the Fourth Circuit from the District Court’s ruling, which gave broad effect to the Clean Water…

Anti Mining Group Appeals Adverse Clean Water Act “Permit Shield” Ruling

      In September, a federal district court in Virginia gave broad effect to the Clean Water Act “permit shield.”  We have written before of the ruling in Southern Appalachian Mountain Stewards (SAMS) v. Red River Coal Company.[1]  The court’s ruling was notable because it extended the “permit shield” to entire “outlets” not expressly controlled by the NPDES permit and not just to individual pollutants…

Court Rejects Claims that Valley Fill Discharges are Unpermitted Discharges: Relies on Broad Application of “Permit Shield”

A federal court in Virginia has ruled in favor of a coal operator in a citizen suit filed under the Clean Water Act, the Surface Mining Act and RCRA. See Southern Appalachian Mountain Stewards (“SAMS”) v. Red River Coal Company, Inc., No. 2:17-cv-00028 (W.D. Va. Sept. 24, 2019). There, Red River has held a combined NPDES/SMCRA permit (“Permit”) since 1992 for a surface mining operation.  As part…

Southern District of West Virginia Rules That Permit Validity Cannot Form the Basis of a SMCRA Citizen Suit

On August 12, 2019, a federal court in West Virginia ruled that plaintiffs cannot use SMCRA’s citizen suit provision to challenge the validity of a surface mining permit in a suit against the permittee. Order. The Plaintiffs, a group of anti-mining organizations, relied on what has come to be known as SMCRA’s “not started” provision, which provides for termination of permits where mining has not…

Our Long National Nightmare is Over (and We Can Finally Mine Some Coal)

“[O]ur long national nightmare is over.” [1]

On May 15 the Sixth Circuit Court of Appeals decided that a partial owner of the surface may grant the right to mine the coal beneath the severed surface estate notwithstanding the objections of the remaining surface owners. The Court concluded that the right to mine was correctly determined as a matter of Kentucky property law, that the state agency’s…

A Christmas Present for All Who Use the Land

          The Environmental Protection Agency and Corps of Engineers delivered their long-awaited definition of “waters of the United States” (WOTUS) on December 11.  The pre-publication version of the rule released on that day marks the beginning of the end of one the most contentious issues in the history of American environmental law.  The new definition will “encompass relatively permanent flowing and…

Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West Virginia

The West Virginia Supreme Court recently issued a decision upholding the ability of mine operators to rely on severance deed waivers for the right to subside the surface without liability for common law claims and clarifying that mere subsidence damage is not, itself, a violation of the West Virginia Surface Coal Mining and Reclamation Act.

The Court was compelled to reaffirm seemingly…

Supreme Court's Answer to Certified Questions Preserves Right to Longwall Mine in West Virginia

The West Virginia Supreme Court recently issued a decision upholding the ability of mine operators to rely on severance deed waivers for the right to subside the surface without liability for common law claims and clarifying that mere subsidence damage is not, itself, a violation of the West Virginia Surface Coal Mining and Reclamation Act.

The Court was compelled to reaffirm seemingly…

West Virginia Supreme Court Emphasizes Importance of DEP’s Role in SMCRA Citizen Suits

On October 5, 2017, the West Virginia Supreme Court ruled that the Wyoming County Circuit Court impermissibly substituted its own judgment for that of the West Virginia Department of Environmental Protection (“DEP”) regarding alleged mining-related contamination of residential water supplies. The Supreme Court’s order raises a number of questions regarding the extent to which citizens may pursue…

WVU Study Identifies Opportunity to Create “Natural Gas Storage Hub” in Applachia

A public study led by West Virginia University has proposed a regional effort towards developing infrastructure capable of supporting oil and natural gas storage facilities along the Ohio and Kanawha rivers. The data was presented on August 29 in Canonsburg, Pennsylvania. Known as the Appalachian Storage Hub study, researchers from the West Virginia, Pennsylvania and Ohio geological surveys have…

 

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