Dan Radmacher

CHARLES Haden is a very brave man. The federal judge has been in this same place before. In 1999, he issued a ruling that sparked uproar among coal miners and the coal industry. Haden was picketed. Honking coal trucks surrounded the federal courthouse during hearings. The owner of a coal trucking firm made a veiled threat against him. "I'm surprised that some of these guys that have lost their jobs haven't taken it into their own hands with this judge," he said. Haden was the most vilified man in the southern coalfields - all because he looked at the law prohibiting mining activities within 100 feet of a stream and issued a sensible ruling that said that a valley fill that buried the stream was, indeed, mining activity. That ruling was eventually overturned on a jurisdictional technicality. But on Wednesday, Haden issued another ruling sure to elicit the same passion and rage. But again, he merely looked at the law that prohibited dumping fill in a stream solely to dispose of waste and issued a sensible ruling that valley fills did just that, and thus could no longer be permitted. Many people have a hard time understanding the distinction between "waste" and "fill," especially when they can be the same material. Rock and dirt compose the fill used to level a piece of ground to make way for a shopping mall or a highway. Rock and dirt compose the waste that is dumped into a stream to create a valley fill. So how are they different? They certainly don't have a different environmental effect. That is very true. But the Clean Water Act recognizes a difference. Fill material is used for a constructive purpose. Dry land needs to be created or the elevation of a stream bottom needs to be changed in order to build something of lasting value. Because fills involve a useful purpose, some degradation of water quality is allowed. Waste disposal, on the other hand, imparts no lasting value. And the Clean Water Act says that because there is no lasting value, no degradation of water quality is allowed. Haden understands that distinction, and he said that a Bush administration attempt to rewrite the definition of fill to include mining waste was an illegal attempt to rewrite the Clean Water Act without congressional approval. The judge also understands the economic and political pressures that led to the rewrite of the rule. "Some may believe that reasonably priced energy from coal requires cheap disposal of the vast amounts of waste material created when mountaintops are removed to get at the natural resource. For them, valley fill disposal is the most efficient and economical solution," the judge wrote. "Congress did not, however, authorize cheap waste disposal when it passed the Clean Water Act."
The coal industry doesn't have to give up valley fills because of this ruling, despite the rhetoric you will undoubtedly hear in the coming weeks and months. Valley fills cannot be used for waste disposal, but if there is a constructive purpose in flattening land, then valley fills can be used. So, to use valley fills, coal companies will have to live up to the social compact implicit in the 1977 Surface Mining Control and Reclamation Act. When they flatten a mountain, they need to find an equal or better use for it: industrial, commercial, agricultural, residential or public facilities. Coal companies should have been doing this all along, but state and federal regulators let them get away with such illegal post-mining land uses as "fish and wildlife habitat." Haden's ruling makes explicit the relationship between mountaintop removal mining and legitimate post-mining land uses. Coal companies say that mountaintop removal can't be accomplished without valley fills. Haden's ruling says those valley fills can be used only when there is a constructive purpose, requiring a real post-mining land use.
Instead of leaving artificial meadows on top of flattened mountains, the coal industry will have to leave real development behind that will improve the lives of residents. Imagine how different the face of Southern West Virginia might be today if that requirement had been enforced all along. West Virginia's congressional delegation should examine this ruling carefully before deciding how to react. Contrary to what the coal industry is going to say, this ruling does not stop mountaintop removal mining. It merely means that finally, finally, the coal industry will have to do it right. Radmacher is the Gazette's editorial page editor. He can be reached at 348-5150 or by e-mail at danrad@wvgazette.com.
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