Appeal challenges ruling to protect streams from mining
On Oct. 20, 1999, Chief U.S. District Judge Charles H. Haden II signed a 49-page court order to limit mountaintop removal coal mining.
In response to a lawsuit by coalfield citizens, Haden ruled that coal operators had to stop burying hundreds of miles of streams with waste rock and dirt. The judge said that only smaller streams could be used for mountaintop removal's valley fill waste piles.
Mining companies complained bitterly. So did Republican Gov. Cecil Underwood, Sen. Robert C. Byrd, D-W.Va., and the rest of the state's Democratic congressional delegation.
Each said Haden's ruling, if implemented, would shut down West Virginia's coal industry.
Lawyers for the state Division of Environmental Protection, coal industry lobby groups and individual companies, the United Mine Workers and the U.S. Department of Justice appealed the ruling.
This week, the 4th Circuit Court of Appeals will hear oral arguments in the case. On Thursday morning, a three-judge panel in Richmond, Va., is scheduled to listen to lawyers debate the case.
Experts have submitted reams of testimony. Lawyers have filed thousands of pages of legal arguments.
But one of the case's most important questions remains unanswered: Could coal mining continue under the limits demanded by Haden's ruling?
In new briefs filed with the 4th Circuit, lawyers for the industry and the DEP insist that it can't.
"As it stands, the decision jeopardizes the continued viability of the coal industry in Appalachia and elsewhere," said Hal Quinn, chief lawyer for the National Mining Association.
Ben Bailey, a private lawyer hired to represent DEP, told the appeals court, "All of the evidence shows that coal mining in West Virginia will be impossible if valley fills are prohibited in intermittent and perennial stream portions."
"The district court ruling at the heart of this appeal will destroy coal mining as an economically viable industry in West Virginia," wrote R. Hewitt Pate, a lawyer for coal industry groups that intervened in the case. Pate added, "This is no exaggeration."
Little new information has been made public to back up these claims, according to a review of court records and agency files.
The closest thing to new data submitted was an argument in a "friend of the court" brief filed with the 4th Circuit by AEI Resources Inc. AEI operates several huge mountaintop removal mines along the Kanawha-Fayette county line. The Addington brothers of Kentucky control the company.
In that brief, company lawyer Sheryl G. Snyder wrote that most of AEI's coal comes from strip mines "which require the ability to construct valley fills in mostly intermittent, but also some perennial streams."
"Should the District Court's ruling be affirmed, it is anticipated that 75 percent of AEI's planned surface production in West Virginia - or 80 million tons of coal - could not be mined, and the remaining 25 percent could only be mined at significantly increased costs," Snyder wrote.
Snyder and AEI provided no studies, data, or reports to back up their claim. Their brief gave no indication that the company had attempted to reconfigure its mines to fill only ephemeral streams.
In his appeals brief, lead citizen group lawyer Joe Lovett said DEP and the coal industry "never even attempted to prove their apocalyptic claim that enforcement of the buffer zone would ban mining."
"There is no credible evidence in the record showing that this decision will have a significant impact on coal production," Lovett wrote.
Legal filings from DEP and the industry "contained no evidence of any kind on the issue of whether mining plans could be reconfigured to avoid intermittent and perennial streams," Lovett wrote in an 81-page brief.
"To gauge the impact of enforcement of the rule, [DEP and the industry] would have had to identify the location where unprotected ephemeral streams end and protected intermittent streams begin," the citizens' lawyers said.
Earlier this year, federal officials were supposed to release a detailed study of mountaintop removal's environmental and economic effects. Government scientists were supposed to examine whether mining could continue under Haden's ruling.
In October, an official from the U.S. Geological Survey hinted that the federal study had found that the DEP and the industry were right.
But the USGS official, geologist Jim Eychaner, said those conclusions had not been finalized. No documents about the conclusions have been released for public review, he said.
Federal officials have delayed the release of their overall mountaintop removal study until next year. The results probably won't be made public until after the 4th Circuit rules on the Haden appeal.
In old-time strip mining, machines chipped away at hillsides to expose coal veins.
But in mountaintop removal, explosives blast off entire hilltops to uncover layers of coal seams. Huge shovels dig away the coal. Dozers and trucks dump leftover rock and dirt - the stuff that used to be the mountain - into nearby valleys, burying streams.
In West Virginia alone, DEP officials have approved permits that would allow more than 775 miles of streams to be buried by valley fills, according to a computer analysis of agency records.
In July 1998, the West Virginia Highlands Conservancy and a group of coalfield residents filed a federal court lawsuit to try to curb mountaintop removal.
Lawyers for the citizens alleged the state DEP and the U.S. Army Corps of Engineers had illegally approved dozens of mountaintop removal permits. They said the permits did not require companies to protect streams or properly reclaim mined land.
Most of the claims in the suit were settled. But lawyers could not resolve a dispute over a rule that requires 100-foot buffer zones between mining activities and streams.
Citizen lawyers argued that the buffer zone rule outlawed valley fills in perennial and intermittent streams. Perennial streams flow all year. Intermittent streams flow part of the year. Citizen lawyers said that the buffer zone rule allowed fills only in smaller, ephemeral streams, which flow only when it rains.
Lawyers for DEP and the coal industry said that the buffer zone rule didn't apply to valley fills. It couldn't possibly apply, they said. If it did, they said, all coal mining would be outlawed.
In late summer 1999, lawyers filed briefs to make their case. They filed more briefs to respond to the other side.
DEP lawyers gave the judge a sworn statement from Eugene Kitts, a former A.T. Massey Coal Co. executive who now works as a mining consultant.
Kitts said that all valley fills in West Virginia "encroach upon streams that would be designated as intermittent and perennial streams." He did not provide any data or studies to back up his statement.
At the same time, lawyers for the citizens groups gave the judge studies by hydrogeologist Charles Norris and mining engineer John Morgan.
Norris and Morgan examined Arch Coal Inc.'s proposal to expand its Dal-Tex mountaintop removal mine in Logan County. They found that there were seven miles of ephemeral streams on the proposed mine site. Under the buffer zone rule, Arch Coal could fill those seven miles of streams, Norris and Morgan told the judge.
"Although not large enough to satisfy [coal companies], these are very large fills," lawyers for the citizens told Haden.
In October 1999, Haden ordered DEP not to issue any more permits for valley fills in perennial and intermittent streams.
"When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments," Haden wrote.
"No effect on related environmental values is more adverse than obliteration," the judge wrote. "Under a valley fill, the water quantity of the stream becomes zero. Because there is no stream, there is no water quality."
The judge said he wasn't swayed by arguments that such a move would shut down the mining industry.
"Coal production and surface mining were considered when the regulations were promulgated," the judge wrote. "The regulator OSM [federal Office of Surface Mining] nevertheless concluded that the destruction of streams below the natural drainway was illegal."
After Haden ruled, lawyers for the state, coal companies and the UMW got another chance to make their case.
On Oct. 25, 1999, they asked Haden to suspend his ruling, until they could appeal.
Bailey and his law partner, Brian Glasser, gave the judge a stack of sworn statements from state government and coal industry officials. They said that Haden's order would halt future mining permits, cause widespread job losses and slash state and local tax revenues.
Lewis Halstead, an assistant chief in the DEP Office of Mining and Reclamation, said that 59 of 62 pending permit applications proposed to fill perennial and intermittent streams. Those applications would be denied because of the ruling, Halstead said.
In a response, Lovett told the judge that the 59 permits Halstead talked about could be issued. Operators could rewrite their mining plans, he said, and fill in only ephemeral streams.
"None of the affidavits demonstrate that such a reconfiguration is either impossible or infeasible," Lovett wrote.
Haden agreed with Lovett. He said that DEP lawyers hadn't proven anything. But the judge suspended his ruling anyway. He said he wanted things to cool down while the 4th Circuit heard an appeal.
Since April, lawyers on all sides have filed a four-inch-thick stack of appeals briefs with the 4th Circuit. Interested parties filed another stack of "friend of the court" briefs.
None of the briefs offered any new data to describe the real impact of Haden's ruling on the buffer zone rule.
In a brief for the industry and the UMW, the firm Hunton & Williams said that Haden "adopted an absurd interpretation of the buffer zone rule that effectively bans mining in West Virginia and other mountainous states."
"Nobody grounded in reality can gainsay the importance of coal mining to West Virginia's economy," Hunton & Williams argued. "So to suggest that a ruling that effectively bans mining really will not hurt the state is irresponsible." Hunton & Williams provided no data, studies or reports to prove Haden's ruling will ban all mining.
Lawyers for DEP told the 4th Circuit that Haden's ruling "not only will eliminate mountaintop mining, but also will drastically reduce contour mining and restrict all types of mining by banning the valley fills and refuse structures necessary to carry out coal mining operations."
As proof, DEP lawyers cited the previous testimony from Kitts and Halstead.
But they cited no studies, reports or data that describe the potential size of valley fills that could be allowed in only ephemeral streams.
Lovett, the citizens group lawyer, told the 4th Circuit that, "DEP has never attempted to measure the difference between ephemeral stream segments that may be filled under the district court's ruling and intermittent and perennial streams that cannot."
"Since DEP has never applied the buffer zone regulation to determine how far down a valley fill an ephemeral stream extends, [they] have no way to determine the extent to which the district court's injunction will affect mountaintop removal mining activities involving valley fills.
"DEP's and [the coal industry's] affidavits contain self-serving conclusions and present no factual or scientific analysis of the hydrology or engineering data for specific mine sites."
Monday in The Charleston Gazette: The appeal of Judge Haden's ruling could be decided by a complicated question of court jurisdiction.