DEP lawyer blasts federal delay in mountaintop mining suit

A state Division of Environmental Protection lawyer on Wednesday demanded that federal regulators explain why they want to delay parts of the federal court lawsuit over mountaintop removal."Material facts should, by now, have been exchanged or discussed between the parties, even if these facts might change or be amended between today and the trial date," DEP lawyer Ben Bailey said in court papers."If ënew material facts' exist which affect the schedule in this case, the United States needs to disclose these facts to all the participants in this case now."On Tuesday, the U.S. Army Corps of Engineers asked a federal judge to delay action on several procedural maneuvers in the case.Steven Rusak, a lawyer for the Corps, said he had discovered "new material facts" which could affect the outcome of the case concerning a Corps permit for Arch Coal Inc.'s proposed Spruce No. 1 Mine in Logan County.Rusak wants Chief U.S. District Judge Charles Haden II to delay, until at least Monday, ruling on efforts by environmental group lawyers to question Corps officials about discussions with West Virginia's congressional delegation about the Arch Coal permit.Rusak also wants to delay action on his own motion to split the July 13 trial into two segments, environmentalists' efforts to add documents to the administrative record on the Corps permit for Arch, and the filing of pretrial orders and findings of facts.
On Wednesday afternoon, Bailey and coal industry lawyer Bob McLusky filed responses to Rusak's motion.McLusky filed a one-sentence statement that said the coal industry parties to the case do not object to the delays.But Bailey criticized the Corps for asking for the delays."Counsel for the plaintiffs, counsel for WVDEP, and counsel for [coal operators] have all been exchanging proposed findings, circulating drafts of pretrial orders, attending depositions and discussing possible resolutions short of trial," Bailey wrote."As many as a dozen depositions remain to be completed before the trial date," he wrote. "The United States' failure to participate in these efforts, and these motions to delay such efforts further, are unfair to all the other parties to the case."The United States' unexplained and unsettling references to ënew material facts' further compounds these difficulties."A ruling from Haden on Rusak's motion had not been filed as of late Wednesday afternoon.

To contact staff writer Ken Ward Jr., call 348-1702, or e-mail

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