by Cathy St. Clair
News Editor 
  A temporary injunction which would have stopped Consolidation Coal Company from dumping mine water into the now idled VP-3 mine void was denied last Thursday following a two-day hearing in Buchanan Circuit Court.
  Judge Bob Williams denied the injunction request filed by Levisa Coal Company, stating the company had failed to prove the standard of "irreparable harm" required before he could take action to issue an injunction.
  Conversely, Williams ruled that the harm to Consolidation if the "extraordinary measure" of a temporary injunction were granted could be "astronomical."
  "It could shut down Buchanan No. 1,"  Williams said referring to an opening statement made by CONSOL attorneys.
  However, the court went one step further and decided a motion for declaratory judgment in the case, which in effect granted Consolidation the right to dump mine water from its Buchanan No. 1 mine into the VP-3 mine void.
  That case had also been pending.
  In commenting on the denied injunction, CONSOL lead attorney Buddy Allen said, "I think Judge Williams was really attentive and understood both sides' arguments. "I think it was really the correct decision and we're pleased with that."
  Ben Street, one of three attorneys for Levisa, declined to comment following the hearing, noting that with litigation on the issue still ongoing, it was inappropriate for him to comment.
  The hearing began last Wednesday.
  Street gave the opening statements for Levisa Coal, noting that the company owns several tracts in the vicinity of VP-3, some of which have been mined, some of which have not.
  Street noted that Levisa holds a lease agreement with Island Creek Coal Company, containing a non-assignment clause which would require Levisa to approve any transfers of the lease to another company.
  When Island Creek became a CONSOL subsidiary, Street alleged the lease did not automatically transfer to Consolidation Coal Company, which is also listed as a subsidiary of CONSOL Energy.
  Street argued that if Consolidation Coal Company is allowed to fill up the VP-3 mine void with mine water, which it later ultimately plans to pump into the Levisa River, near Poetown, it will degrade the coal owned by Levisa underground at VP-3 and further make it inaccessible for the next 17 years -- the projected span of time during which the VP-3 mine works will essentially be under water.
  Already, Street noted, Consolidation has filled the Beatrice mine void with billions of gallons of water and likewise, he said the VP-1 mine is also full. The rate of pumping mine water from Buchanan No. 1, to VP-3, Street said was estimated to be some 2,500 gallons per minute.
  "Consolidation Coal Company is a company that Levisa has no business with," Street said. "They have no contract, no deed, no lease and have never given Consolidation the right to come on the property or look at the property. We had a lease with Island Creek Coal Company that gave Island Creek the right to mine. It did not grant CONSOL any rights whatsoever."
  Street suggested that in essence, Consolidation Coal Company was trespassing on Levisa's property.
  "It's no different that any other third party whether it be Exxon, Haliburton or Disneyworld," Street said.
  Street said Levisa was concerned not only about the inability to mine coal while the mine is underwater, but also the potential effects on coalbed methane gas production, which through an agreement with others, the company receives production royalties.
  "This is not a case of coming on our property cutting a few trees . . .," Street said. "Coal and gas are the bread and butter of our business."
  It was further noted in testimony as the hearing went on, that permits and permit revisions sought on the mine water dumping proposal and a permit application recently approved by the Department of Mines, Minerals and Energy to discharge that water into the Levisa River were sought not by Island Creek Coal Company, but by Consolidation.
  Allen gave the opening statement for CONSOL noting that while Levisa claimed CONSOL was storing water in VP-3, it was not CONSOL, but Island Creek, pursuant to a 1956 coal lease.
  "This case is about the money; nothing more and nothing less," Allen said.
  He suggested that if the company is not allowed to store water from Buchanan No. 1 into the VP-3 void, it will have the effect of closing one of the most productive mines in Buchanan County and one of its largest employers.
  The Buchanan mine, he said, produces from 4.8 to 5 billion tons of low volatile metallurgical coal. He said it is one of the 20 largest underground mines in the United States today and he said any extended shut down which would have to occur because the mine cannot pump out the water flowing in it would impact the company's $30 million payroll; its $60 million in purchased vendor services; $36 million in taxes, including $1.6 million to Buchanan County; and the $100,000 it gives to local charities.
  "The court must weigh the likelihood of irreparable harm to Levisa versus the likelihood of harm to Buchanan No. 1," Allen said. "Levisa can't show irreparable harm, it's speculative."
  Allen argued the company had the right to dump water into the mine void under the lease which allowed "other uses" as needed.
  "They are seeking to force CONSOL, or Island Creek, to pay now for coal and gas reserves," Allen said.
  Whether those reserves are ever mineable, he suggested was a separate question.
  Allen suggested that Levisa could not prove irreparable harm, and he suggested that VP-3, through no one's fault might never be reopened.