DEP, Corps, company ask for mine approval
Arch Coal Inc. argued Tuesday that the largest mountaintop removal mine in state history has received proper permits and should be allowed to start operating.
Bob McLusky, lawyer for Arch Coal subsidiary Hobet Mining Inc., asked a federal judge to deny environmentalists' request for a temporary restraining order to halt the mine.
In a thick brief that included a dozen exhibits, McLusky said the goal of the West Virginia Highlands Conservancy "is not environmental protection, but rather further delay" of the 3,100-acre operation near Blair, Logan County.
"[Hobet's] operations have been severely delayed and dramatically scaled back," McLusky wrote. "Any further delays will seriously threaten the future of the Spruce Fork operation."
Lawyers for the state Division of Environmental Protection and the U.S. Army Corps of Engineers filed separate briefs that also asked that the restraining order be denied.
Chief U.S. District Judge Charles Haden II has scheduled a hearing for 4 p.m. today in Charleston to hear arguments on whether he should halt the mine's final permit, a dredge-and-file authorization from the Corps.
The Dal-Tex permit was exempted from a partial lawsuit settlement that requires other mountaintop removal mines to undergo more thorough environmental studies. The Conservancy wants Haden to force the operation to undergo those same studies.
In a brief filed Tuesday, the U.S. Justice Department noted that Hobet Mining agreed to reduce the amount of streams buried by mine valley fills by 40 percent.
The department, representing the Corps, also noted that, in exchange for its permits, Hobet agreed to plant 15,000 hardwood trees, build 13 acres of artificial streams, and provide 280 acres of forest for Chief Logan State Park.
"The Corps has required sufficient mitigation and reduction in the scope of he project to fully protect the environmental values," the department said.
Chief DEP mining lawyer Russ Hunter said that the environmentalists have not shown that the agency violated any mandatory duties.
"The fact that Plaintiffs would have made different conclusions relative to certain findings does not in and of itself establish a failure to perform a non-discretionary duty," Hunter wrote.
McClusky said that the permit does not violate federal stream buffer zone rules, approximate original contour standards, or contemporaneous reclamation regulations.
McClusky submitted written statements supporting the permit from David Fisher, a company environmental consultant, and George Hall, a former industry consultant now working as a state Division of Highways engineer.
McClusky also submitted a written statement from Bob Bays, Arch Coal's general manager for West Virginia operations.
"Should further delays occur, the Dal-Tex operations will sustain additional financial losses which could range in the millions," Bays said. "The company would suspend most of its active mining operations, rather than confront this prospect."