Feds want smaller mines - but how much smaller?
Federal environmental regulators want mountaintop-removal valley fills to be smaller.
But how much smaller? Can coal companies bury half a mile of a stream? One mile? Two miles? Ten miles?
The U.S. Office of Surface Mining doesn't want to decide. Neither does the Army Corps of Engineers nor the Environmental Protection Agency.
In court papers, lawyers for these agencies argue that Chief U.S. District Judge Charles H. Haden II should make the call.
They asked a federal appeals court to send the court case over mountaintop removal back to Haden so he can consider the issue.
Jared Goldstein, an environmental lawyer with the Justice Department, told the 4th Circuit, "Some placement of excess spoil may not cause adverse environmental effects." This spoil placement is allowed under the buffer-zone rule, Goldstein said. Haden should rewrite his ruling to say so, Goldstein said in appeals briefs.
On Thursday, the 4th Circuit Court of Appeals in Richmond, Va., will hear oral arguments on the federal government's proposal.
In October 1999, Haden ruled that a stream buffer-zone rule prohibited coal companies from dumping waste rock and dirt into perennial and intermittent streams. Valley fills are only allowed in smaller, ephemeral streams, the judge said.
Gov. Cecil Underwood and the coal industry say that Haden's ruling would end all mining in West Virginia.
Lawyers for the state Division of Environmental Protection, various industry groups and the United Mine Workers appealed Haden's decision to the 4th Circuit.
Justice Department lawyers also appealed on behalf of various federal agencies that regulate mining.
In their appeal briefs, federal officials struck a middle-of-the-road position.
On the one hand, they told the appeals court that they believed the buffer-zone ruling did apply to valley fills.
Previously, federal and state regulators argued that the buffer-zone rule did not apply to the portion of streams actually buried by fills. They said it only applied to stream segments downstream from the fills.
But in their brief, federal lawyers reversed their position. The buffer zone did protect the portions of streams actually buried, they said.
"By specifying that mining activities must seek to protect water resources 'at the mine site and in associated offsite areas,' Congress made clear that water resources must be protected where mining activities occur and not only at downstream portions away from the mining sites," the Justice Department said in one of its briefs.
On the other hand, federal government lawyers said that Haden went too far. They disagreed with his conclusion that valley fills should not be authorized under the Clean Water Act "dredge-and-fill" permits issued by the Corps.
In April, the EPA and the Corps proposed a change in federal regulations that would overturn that portion of Haden's ruling. The new regulation has not been finalized.
Federal government lawyers also disagreed with Haden's conclusion that valley fills always adversely impact streams.
In his 49-page decision, Haden found, "When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments."
Justice Department lawyers, however, said that valley fills could sometimes meet the test to be granted a waiver from the buffer-zone rule.
Under the buffer-zone rule, no mining activity is allowed within 100 feet of streams unless the activity will have no adverse effects on streams.
During hearings before Haden, federal lawyers said, "Uncontested evidence ... demonstrated that the burial of substantial portions of intermittent or perennial streams causes adverse environmental effects to the filled stream segments.
"The evidence involved valley fills consisting of 13.2 million, 80 million, and 151 million cubic yards," the Justice Department said. "Valley fills of such size far exceed the scale of valley fills at the time [the federal strip mining law] was enacted.
"The proposed fills thus would have simply eliminated the affected stream segments, segments that a United States Fish and Wildlife field report states are necessary to 'support healthy aquatic communities and provide fresh water, nutrients and food organisms to downstream aquatic ecosystems.'"
Again, Justice Department lawyers said that Haden went too far.
"The district court's injunction prohibits even minor spoil disposal activities that do not involved the filling of stream segments," the government's briefs said.
"Indeed, 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," government lawyers said.
"Neither the law nor the evidence presented to the district court mandates the conclusion that such spoil disposal inevitably causes adverse environmental effects."
Justice Department lawyers argued instead that, "some placement of excess spoil may not cause adverse environmental effects and therefore may be appropriately approved under the stream buffer-zone rule."
Lawyers for the West Virginia Highlands Conservancy and other citizens argue that the Justice Department is wrong.
"The buffer-zone rule says that 'no land within 100 feet' of a perennial or intermittent stream 'shall be disturbed,'" the Conservancy's lawyers told the 4th Circuit.
"The word 'no' is unambiguous," they said. "It means no disturbance.
"When it promulgated the rule, OSM said nothing about any exception to its terms," the Conservancy said. "Thus, even if OSM had authority to create such an exception, it never exercised that authority within this rule and cannot apply for it for the first time in a footnote to the agency's appeal brief."
But suppose the Justice Department is right.
Then, what's the difference between the "substantial segments" of streams that can't legally be buried and "some placement of excess spoil" which may be legally authorized?
When they filed their initial appeals brief in April, federal officials wouldn't say.
"We'll have to wait and see," Lois Schiffer, chief environmental lawyer for the Justice Department, said at the time. "We'll have to look case by case to see if the protections of the Clean Water Act are met."
Michael McCabe, deputy administrator of EPA, said in April that regulators couldn't say for sure how big valley fills could be under their legal theories.
"It is going to be more protective of the environment," McCabe said in an interview.
"Does that mean you're going to have smaller mines? Does it mean you're going to have more overburden high up on the mountainside instead of in the streams?
"I think we're going to have to see how it works on a case-by-case basis."
Last week, federal regulators did not respond to requests for interviews about their new reading of the buffer-zone rule.