Mining appeal focuses on obscure stream rule By Ken Ward Jr. December 3, 2000 On Thursday, a panel of federal judges in Richmond, Va., will debate ephemeral streams, overburden placement and buffer zone rules. Last year, Chief U.S. District Judge Charles H. Haden II ruled that coal operators could not dump mining waste into most West Virginia streams. Lawyers for the state Division of Environmental Protection and the coal industry hope to convince the 4th U.S. Circuit Court of Appeals that Haden was wrong. Lawyers for the West Virginia Highlands Conservancy hope to persuade the judges that Haden was right. Each side offers a different interpretation of four paragraphs buried in the more than 700 pages of federal regulations that govern coal mining. The lawyers differ over two complex legal questions: Does the buffer zone rule apply to the footprint - the area of streams actually buried - of valley fills? If it does, can waivers of the buffer zone rule be issued by DEP if separate Clean Water Act "dredge-and-fill" permits for mining operations are approved? The buffer zone rule says: "No land within one hundred feet of an intermittent or perennial stream shall be disturbed by surface mining operations including roads." Under the rule, coal operators can receive a buffer zone waiver, and mine within 100 feet of streams. To approve a waiver, state regulators must be convinced that the mining "will not adversely affect the normal flow or gradient of the stream, adversely affect fish migration or related environmental values, materially damage the water quantity or quality of the stream and will not cause or contribute to violations of" water quality standards. No variance required In February 1999, Larry Alt took the stand in Haden's Charleston courtroom. Alt, then the permit supervisor at DEP's Logan field office, defended the mountaintop removal permits that his agency issued. Haden asked Alt if he approved buffer zone variances before he allowed valley fills in perennial and intermittent streams. Alt said that he never had. Coal companies don't need a buffer zone variance to bury streams, Alt told the judge. "We do not require them to make those [buffer zone variance] findings," he testified. In their appeals, lawyers for DEP, the coal industry and the United Mine Workers say that Alt was correct. They argue that none of the buffer zone requirements apply to the footprint of valley fills. Ben Bailey, a lawyer for DEP, told the 4th Circuit that numerous other federal and state mining rules specifically allow valley fills. If the buffer zone rule prohibited them, all those other rules wouldn't make any sense, Bailey said. "[The regulations] protect streams as a whole and the environment, but cannot be construed as the district court did, to prevent any valley fills in intermittent and perennial streams," Bailey told the 4th Circuit. Coal operators and mine workers agree with Bailey and the DEP. The DEP reading of the buffer zone rule is reasonable, they said. Courts must defer to regulators when the regulators interpret rules in a reasonable way. "By applying the buffer zone rule to permit valley fills in intermittent and perennial stream segments as long as the fill does not adversely affect the stream as a whole, [DEP] has maintained the careful balance between the environment and the continued economic mining of coal required by" the state's strip mining law, wrote R. Hewitt Pate, a lawyer for coal industry groups that intervened in the case. In his ruling, Haden said that this argument was ridiculous. He said it didn't deserve any deference. "This interpretation ... leads to the reductio ad absurdum [reduction to absurdity] that miles of streams could be filled and deeply covered with rock and dirt, but if some stretch of water downstream of the fill remains undiminished and unsullied, the stream has been protected," Haden wrote. Joe Lovett, lead lawyer for the citizens groups, told the 4th Circuit that Haden was right. "Nothing in the language or history of the regulations suggests that parts of streams may be destroyed so long as other parts are saved," Lovett wrote. "The plain language of the buffer zone rule is unequivocal and provides that 'no land' within the buffer zone may be distributed unless the variance requirements are met." A weaker standard In August 1999, DEP officials tried to find another way around the buffer zone rule. This time, they signed an agreement with federal regulators. DEP would apply the buffer zone rule to valley fills. They would just give coal companies variances. Under the agreement, variances would be approved if companies received Clean Water Act "dredge-and-fill" permits issued by the U.S. Army Corps of Engineers. In his ruling, Haden threw out this scheme. The judge said that the Corps' permit guidelines were not as strong as the requirements for a buffer zone variance. Under the Corps' guidelines, permits may be issued that would damage the environment, as long as that damage is not "significant." Under the buffer zone rule, fills may not be approved if they will cause any "adverse" impacts. Also, Corps rules consider only aquatic impacts. The buffer zone rule protects "other environmental resources" as well. Haden said that substituting the Corps' guidelines for the buffer zone rule "is inconsistent with the buffer zone rule because it substitutes a more lenient, less protective standard." In their appeal, lawyers for DEP, the state and the mine workers asked the 4th Circuit to overturn Haden on this issue. Bailey said that DEP believes that the Corps' guidelines provide the same, or more, environmental protection than the buffer zone. Pate told the appeals court that the coal industry believes that Haden should have approved substitution of the Corps' guidelines because federal agencies had proposed the arrangement. But in April, the U.S. Department of Justice withdrew the federal government's support. In its initial appeal brief, the federal government said that it now agrees with Haden that the Corps' guidelines aren't strong enough to allow a buffer zone variance. Lovett, the citizen group lawyer, said in his appeals brief that federal agencies had backed off an "indefensible and erroneous interpretation." "The [Corps] guidelines prohibit 'significantly adverse effects' on environmental resources, while the buffer zone rule prohibits mining activities that 'adversely affect' environmental resources," Lovett wrote. "Adverse effects are a broader set of effects than significantly adverse effects," Lovett wrote. "By prohibiting only the latter, and not the former, the guidelines use a weaker standard of protection than the standard for the buffer zone rule." To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.