In a blow to the coal industry and the Underwood administration, federal regulators filed a brief Monday that supports key parts of a court order to limit mountaintop removal mining. Lawyers from the U.S. Justice Department said a stream "buffer zone" rule was intended to control the size of valley fills. "Valley fills in intermittent or perennial streams may be authorized under the buffer zone rule only if the permitting agency finds that they will not adversely affect the environmental resources of the filled stream segments," said the brief, filed with the 4th U.S. Circuit Court of Appeals. "The elimination of substantial intermittent or perennial stream segment[s] necessarily causes adverse environmental effects, as it eliminates all aquatic life that inhabits those stream segments," the brief said. But federal officials also opposed part of federal district Judge Charles H. Haden II's ruling that they said could prohibit all valley fills. "We think that the broad ban on any introduction of spoil into the streams is just too broad," said Lois Schiffer, the federal government's top environmental lawyer. "We have to look case by case to see if the protections of the Clean Water Act are met," she said in a telephone interview. "We think it will have the effect of being more environmentally protective than it has been in the past." Schiffer filed a 54-page brief Monday evening on behalf of the U.S. Environmental Protection Agency, the Army Corps of Engineers and the Department of the Interior's Office of Surface Mining. Mountaintop removal mining blasts off entire hilltops to uncover coal deposits. Leftover rock and earth are dumped into nearby valleys, burying streams. At least 750 miles of West Virginia streams have been approved to be buried by valley fills, according to state Division of Environmental Protection records.
In October 1999, Haden ruled that a federal stream buffer zone rule prohibited fills in perennial streams, which flow all year, and intermittent streams, which flow most of the year. Fills are allowed only in smaller, ephemeral streams, which flow only when it rains or when snow melts, Haden ruled. In his ruling, Haden also said fills cannot be authorized under "dredge-and-fill" permits issued by the Corps of Engineers. Instead, he said, fills are regulated by the EPA under its pollution discharge permits. Gov. Cecil Underwood and the coal industry said Haden's ruling would end all mining in West Virginia. DEP, the industry, the United Mine Workers and the Justice Department appealed the Haden decision to the 4th Circuit in Richmond, Va.
On Monday, the Justice Department and the industry were scheduled to file their initial legal briefs. A copy of the industry's brief was not available Monday evening, said Bill Raney, president of the West Virginia Coal Association. The federal government's brief, however, was more hotly anticipated by those watching the mountaintop removal case. The brief made four major points: - The government supported the rights of residents to file lawsuits in federal court against state agencies that are not properly enforcing the 1977 Surface Mining Control and Reclamation Act. The Underwood administration says the state is immune from such suits. - Federal lawyers agreed with Haden that the buffer zone rule "prohibits the burial of substantial portions of intermittent and perennial streams" beneath valley fills. Some fills could be allowed in those streams, federal officials said, if mine operators met the test for a buffer zone variance. But federal officials also said they had withdrawn an August 1999 agreement that made it easier for operators to meet that test. Under the agreement, a buffer zone variance could be granted if an operator received a dredge-and-fill permit from the corps. On Monday, OSM Director Kay Henry said that the buffer zone test was more stringent than the corps' permit requirements. In a letter to DEP Director Michael Castle, Henry said companies must meet both tests. - The Justice Department said Haden was wrong to outlaw the permitting of valley fills under corps' permits. Haden had ruled that valley fills are mining "waste," and that waste fills could not be approved by the corps. In an interview, EPA Deputy Administrator Michael McCabe said his agency and the corps would issue new regulations later this week to allow mining waste fills to be authorized by the corps. - Federal regulators argued that Haden's ruling was overly broad, because it blocked DEP from issuing permits that allowed "placement of any excess mining spoil into any" perennial or intermittent stream. "The district court's injunction would prohibit the placement of even de minimis amounts of excess spoil, such as a single rock or handful of dirt, in any intermittent or perennial stream," the government brief said. "No evidence was presented to the district court that the disposal of small quantities of mining soil, even the disposal of de minimis quantities, invariably causes adverse environmental effects," it said. The government asked the 4th Circuit to reverse Haden's injunction, remand the case to him, and instruct Haden "to frame an injunction that is more narrowly tailored to the claims that were before the court." To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.