Ohio River Valley Environmental Coalition, Inc. v. Callaghan

No. 3:00-0058 (133 F. Supp. 2d 442) (S.D. W. Va. March 8, 2001)

ELR Digest

The court denies citizen groups' motion for a preliminary injunction to restrain West Virginia's environmental agency from issuing a surface mining permit that would allow a ridge top in the headwaters of Island Creek, West Virginia, to be mined. The groups claimed that in conducting the cumulative hydrologic impact assessment (CHIA) and reaching its conclusion, the agency violated several mandatory, nondiscretionary duties. The groups claimed that the agency had insufficient data from baseline samples to predict flow during wet periods or rainfall events, that the material damage limits contained in the CHIA were inadequate, that Island Creek's placement on the Clean Water Act § 303(d) list of streams impaired by pollution precluded the agency's findings that the operation was designed to prevent material damage to the stream, and that the lack of baseline data rendered the monitoring plan useless. The court first holds that although the agency could, without much cost or delay, easily remedy some of the deficiencies argued by the groups, it is unlikely that these deficiencies will sustain a final conclusion that the agency breached its duties. The court further holds that the balance of harms weighs against granting the injunction, and the operation at issue is relatively small and in a hydrologically remote area.

The full text of this decision is available from ELR (14 pp., ELR Order No. L-351).

Counsel for Plaintiffs
Charles M. Kincaid
Law Offices of Charles M. Kincaid
625 7th St. W., Huntington WV 25704
(304) 522-4166

Counsel for Defendants
Benjamin L. Bailey
Bailey & Glasser
227 Capitol St., Charleston WV 25301
(304) 345-6555

[31 ELR 20503]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]