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Judge enters debate over mine contour

In blocking the largest mountaintop removal mine in West Virginia history, a federal judge last week waded into the complicated argument over whether coal operators can really rebuild the Appalachian Mountains.Chief U.S. District Judge Charles Haden II based his ruling in part on allegations that the Arch Coal Inc. permit does not meet the federal "approximate original contour," or AOC, reclamation rule.Haden ruled that lawyers for environmental groups have made a good case that the state Division of Environmental Protection has issued permits with no regard for the AOC standard."These questions are so complex and difficult that they are fair ground for litigation and thus for more deliberate investigation," Haden wrote in a 47-page ruling.AOC is the heart of the 1977 Surface Mining Control and Reclamation Act.Congress passed the law to make sure that coal companies put land back, as best they could, the way it was before they mined it. Under the law, operators must reclaim mined land so that it "closely resembles the general surface configuration of the land prior to mining."Lawmakers allowed narrow exceptions. Coal operators could ignore AOC, and flatten the land, if they planned future developments, such as schools, factories or public parks.A review of DEP permit records shows that the agency has permitted mountaintop removal mines without the required AOC variances, and without operators filing any plans for post-mining development. Last week, Haden granted a preliminary injunction that halts the Arch Coal Spruce No. 1 Mine along Pigeonroost Branch near Blair, Logan County, until a trial in September.As part of a larger case over mountaintop removal, environmental-group lawyers allege that DEP has permitted mountaintop removal mines without AOC variances or the required post-mining land use plans.In his ruling on the Spruce mine, Haden noted that no one - not DEP, nor the company - disputes that the operation received a permit without an AOC variance. In that case, Haden wrote, Arch Coal subsidiary Hobet Mining is required to return the site to its approximate original contour.DEP lawyers argued in court that whether the mine will meet the AOC rule is a judgment call. In legal terms, it is a "discretionary" decision the court must leave up to a regulatory agency, lawyers for DEP and the mining company argue.
At the same time, though, DEP officials have said they have little choice but to approve mountaintop removal mines as meeting the AOC rule, because the U.S. Office of Surface Mining has never written a regulation to more concretely define AOC.In his ruling, Haden said, "The AOC requirement and definition undeniably allow the use of some discretion in determining whether a permit meets the standard."The agency must make a case-by-case determination of whether the requirement is satisfied," Haden wrote. "This does not, however, give the agency carte blanche in making the determination."
Haden noted that Arch Coal's permit application showed that the Spruce mine would raise the valley floor of Pigeonroost Hollow by as much as 300 feet, and lower the elevation of mountains by as much as 200 feet."Current plans for regrading will leave five level or gently rolling areas, in stark contrast to the current topography," Haden wrote. "The post-mining elevation showed one flat or approximately level area, 6,000 feet in length, that had projected final elevations of less than 50 feet."Haden also cited the testimony of John Morgan, a mining engineer working for environmental groups, that the final permit approved by DEP does not contain cross-section diagrams that would explain what the reclaimed mine site would look like."This lack of information prevents a determination of whether the proposed post-mining configuration will meet AOC," Haden wrote.Haden recited testimony from DEP officials about the agency's old 50-foot rule. Under the rule, any change in elevation of more than 50 feet would mean a mine did not qualify as meeting the AOC rule.DEP permit supervisor Larry Alt and assistant mining chief Lewis Halstead testified that the agency no longer uses the 50-foot rule, and doesn't consider elevation when determining if a mine meets AOC.
The larger the change in elevations that mines are allowed to make and still meet AOC, the more leftover rock and earth they will dump in valley fills. If the 50-foot rule were still used, either companies would have to get AOC variances - and propose post-mining development - or they would have to rebuild more of the mountains and bury less of the streams.In his ruling, Haden said that DEP had not shown in court that the 50-foot rule had been legally repealed."The evidence demonstrates a serious question as to whether DEP is failing to apply a 50-foot rule that remains applicable," Haden wrote. "Such actions may demonstrate arbitrary and capricious behavior of DEP in violating or ignoring what may be a mandatory, nondiscretionary duty."Moreover, the evidence demonstrates Plaintiffs have raised substantial, serious questions going to the merits of whether Defendant Miano himself breached mandatory, nondiscretionary duties in his application of the AOC requirement," the judge wrote.
To contact staff writer Ken Ward Jr., call 348-1702.
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