Mining case hinges on buffer zone/valley fill ruling
Lawyers for coal companies, environmental groups, regulators and miners are waiting for a federal judge to decide whether a stream buffer zone rule protects creeks from valley fills.
A ruling from Chief U.S. District Judge Charles Haden II on the issue will decide who has the upper hand in a high-profile case over mountaintop removal mining, lawyers say.
Environmentalists say the state Division of Environmental Protection ignores the buffer zone rule when it permits mountaintop removal mine valley fills.
Coal companies argue that the rule does not apply to valley fills. Lawyers for DEP and the United Mine Workers agree, court records show.
During private negotiations, the four parties have made progress on many other issues. But none will move on the buffer zone rule. They won't agree on the other matters until the buffer zone is resolved.
"I don't think we'll change our mind on that issue," Ken Wood ring, executive vice president of Arch Coal Inc., said.
St. Louis-based Arch Coal is West Virginia's top coal producer, and the industry's main proponent of mountaintop removal. Arch operates four of the state's five largest surface mines. All are mountaintop removal complexes.
Last year, four Arch Coal subsidiaries intervened in the federal court mountaintop removal case. The West Virginia Highlands Conservancy sued the DEP and the Army Corps of Engineers to try to curb mountaintop removal.
In early March, Haden issued a preliminary injunction that halted permits for Arch Coal to expand its Dal-Tex mine near Blair, Logan County.
Haden has scheduled a July 13 trial on the Dal-Tex permit, and on a larger case which accuses regulators of "a pattern and practice" of issuing illegal mountaintop removal permits.
Last month, lawyers for the conservancy and other citizens asked Haden to issue a summary judgment on several issues in the case. In summary judgment motions, lawyers argue that there are no disputed material facts, and ask judges to rule solely on legal interpretations.
Since then, lawyers for all sides have file several hundred pages of briefs and exhibits. Haden has not indicated when, or if, he will rule.
The most important issue raised in the summary judgment motion is how the buffer zone rule applies to valley fills, lawyers involved in the case say.
Mountaintop removal blasts off hilltops to uncover coal seams. Leftover earth is shoved into hollows, burying streams under waste piles called valley fills.
Under the 1977 federal Surface Mining Control and Reclamation Act's buffer zone rule, no mining activity is generally allowed within 100 feet of streams.
Coal companies can obtain a waiver of the buffer zone rule. To do so, they must show that mining within 100 feet of a stream doesn't degrade the stream.
In their July 1998 lawsuit, environmentalists allege DEP issues buffer zone waivers for valley fills without showing that the streams won't be degraded. They also allege that waivers for valley fills are impossible, because dumping millions of tons of rock and earth into streams obviously degrades them.
"If the buffer zone doesn't apply to the footprint of valley fills, I don't know where it does apply," said Cindy Rank, the conservancy's mining chairwoman.
Coal industry lawyers argue that this reading contradicts other parts of the law that describe how valley fills can be permitted in streams.
In a recent legal brief, industry lawyer Roger Wolfe also told Haden that if the buffer zone rules are applied to valley fills it "would end all coal mining in Southern West Virginia by eliminating virtually all valley fills."
Last week, DEP lawyer Ben Bailey filed a brief that noted the U.S. Office of Surface Mining plans to issue an opinion on the buffer zone/valley fill issue by July 2. In several recent reports, OSM has indicated it will probably rule that the buffer zone does not apply, Bailey claimed.
"Thus, when all is said and done, plaintiffs' attacks on the State's processes, designed to halt permitting and mining, have been or will be substantially negated," Bailey wrote.
But last week, OSM officials said that their agency applies the buffer zone rule to valley fills in Tennessee. In Tennessee, OSM, not the state, regulates surface mining.
George Miller, director of the OSM field office in Knoxville, Tenn., said that his agency requires coal operators to obtain waivers from the buffer zone rule if they want valley fill permits.
In their court filings, environmental lawyers argue that applying the buffer zone rule will outlaw valley fills in larger perennial and intermittent streams, not in smaller, ephemeral streams.
"Although it is true that many recent fills have grown so large that they often bury intermittent and perennial streams, bringing fills back to a reasonable size will not bring mining to a grinding halt," wrote lawyer Joe Lovett, who represents coalfield residents.
For example, an expert hired by the plaintiffs found 4 miles of ephemeral streams that could be used for valley fills at the Dal-Tex expansion site.