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West Virginia political leaders reacted calmly and cautiously Thursday to a new federal court ruling that curbs mountaintop removal coal mining. The Wise administration continued to review the decision by Chief U.S. District Judge Charles H. Haden II. West Virginia's congressional delegation did the same. A formal reaction from them was not expected until next week. Even the United Mine Workers union offered a statement that was far from the harsh condemnation that greeted a similar ruling in October 1999. "Judge Haden's decision will have to be thoroughly analyzed by all impacted parties over the next few days and weeks in order to fully determine its potential impact on the coal mining industry as a whole," said UMW President Cecil Roberts. On Wednesday, Haden ruled that the federal Clean Water Act generally prohibits coal operators from burying streams beneath mountaintop removal waste rock and dirt. Haden said that the Army Corps of Engineers may permit valley fills only if they are proposed as part of a plan for post-mining development of mountaintop removal sites. The judge ordered the corps not to permit any new valley fills that are not proposed as part of a post-mining development plan. Historically, the corps had authorized valley fills through its "dredge-and-fill" permits under Section 404 of the Clean Water Act. After a similar decision by Haden in 1999, then-Gov. Cecil Underwood called press conferences to attack the ruling. The UMW marched on the state Capitol and the federal courthouse. Sen. Robert C. Byrd, D-W.Va., and other members of the state's congressional delegation proposed legislation to overturn the judge's ruling. Eventually, the decision was thrown out on a jurisdictional technicality. This week's ruling does not face the same jurisdictional hurdle. Late Wednesday, the National Mining Association issued a statement to attack the judge and his ruling. "The National Mining Association is startled by the scope of U.S. District Court Judge Charles Haden's ruling issued today, May 8," the group said. The group said that Haden "appears to have called into question Section 404 of the Clean Water Act in its entirety, when the matter before him was a single permit." Industry groups that intervened in the case have said that they would appeal. Alex Macia, general counsel for Gov. Bob Wise, said he wasn't familiar enough with federal environmental law to say if Haden's reading is right or wrong.
But Macia said that the administration supports rules and regulations that would encourage economic development on mountaintop removal sites. "We are supportive of post-mining land uses, and economic development in the affected counties," Macia said late Thursday. "Obviously, those counties suffer from a lack of flat, developable space." Macia noted that this Haden decision - unlike the 1999 ruling - did not target any improper permitting practices by the state Department of Environmental Protection. "We are still assessing the impact of the relief that Judge Haden granted," Macia said.
"Obviously, we will follow the law as Judge Haden interpreted it," he said. "We're here to enforce the law as it is written and interpreted." In 1998, when he was a congressman, Wise said, "The law seems pretty clear that you need to get permission for a variance, and you need to have a development plan approved for mountaintop removal, and mountaintop removal ought to be adhering to those standards."
Jeff Jarrett, director of the U.S. Office of Surface Mining, issued a statement that questioned Haden's decision. "OSM is committed to balancing protection of our environment and a strong economy," Jarrett said. "Although not a party in this lawsuit, we are reviewing the judge's ruling because it has the potential to have significant impact on the mining operations in Appalachia that OSM is responsible for regulating. "Congress specifically authorized valley fills when it passed the Surface Mining Control and Reclamation Act [SMCRA] in 1977," Jarrett said. "By basing his decision on the earlier Clean Water Act, the judge appears to be in conflict with the most recent action taken by Congress." In his prepared statement, Roberts said that the UMW is concerned about a "period of uncertainty" following Haden's ruling. "I am afraid that will be the case until a definite course is chartered," Roberts said. "As for the UMWA, our members will continue to mine coal where they are paid to do so, but like everyone else involved in this debate, until the exact standards are finally determined, we are in limbo." Roberts added, "Be assured that the UMWA will do whatever it takes to protect the interests of our members." In its statement, the UMW was also the only entity - besides the coal industry lobby groups - that appeared to call for congressional action to resolve any problems that the ruling may cause for mining companies. Haden had said that the corps and the U.S. Environmental Protection Agency did not have the authority to override the Clean Water Act, and legalize fills with a change in administrative regulations. "Amendments to the Act should be considered and accomplished in the sunlight of open congressional debate and resolution," the judge wrote. "The UMWA would agree that Congress does need to take the lead in addressing this matter and deciding, once and for all, just how the law should read with respect to the mining of coal in this nation," Roberts said. "That's clearly who we will be looking to for guidance in this upcoming period of uncertainty." Just as Haden's ruling was issued, several members of Congress were proposing related legislation. Reps. Chris Shays, R-Conn., and Frank Pallone Jr., D-N.J., proposed a bill to override the corps-EPA effort to legalize valley fills. The legislation would amend the Clean Water Act to include language to specifically outlaw valley fills. "Nothing is more inconsistent with the Clean Water Act than allowing the nation's waterways to be filled and destroyed by industrial waste - yet that is precisely what the Bush administration's new regulation is intended to permit," said Joan Mulhern, a lawyer and lobbyist for the group Earthjustice. "It seems the court and Congress agree." To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
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