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Valley fill question not resolved by ruling

In Boone County, Independence Coal Co. wants to bury nearly 5 miles of streams along Jacks Branch near Uneeda.

On Cabin Creek in Kanawha County, Catenary Coal wants to bury another 8.5 miles of streams at its Samples Mine. Up in Clay County, Fola Coal wants a permit to bury 3 miles of streams along Twentymile Creek.

Statewide, coal companies have proposed new valley fills that would bury more than 100 more miles of streams, according to permit applications on file with the state Division of Environmental Protection.

That's on top of the more than 775 miles of streams already approved to be filled with waste rock and dirt from strip mines.

Should these fills be allowed? Does a strip-mine stream buffer zone prohibit them?

Should coal companies be permitted to bury hundreds of miles of creeks and streams across the Southern West Virginia coalfields?

Last week, three 4th U.S. Circuit Court of Appeals judges threw out a federal court order to limit the size of valley fills.

But the appeals panel tossed the ruling based only on a complicated legal rule about which courts should hear what kinds of cases.

In its long-awaited opinion, the 4th Circuit did nothing to address what has become one of the most contentious environmental issues in recent West Virginia history.

Environmentalists and citizen groups still believe that valley fills are illegal in all but smaller, ephemeral streams that flow when it rains or snow melts. They promise to appeal the 4th Circuit panel's ruling.

Coal industry officials and the state government still contend that valley fills are perfectly legal.

"Does this ruling resolve the buffer zone? No," said Michael Callaghan, director of the state Division of Environmental Protection. "It didn't resolve any of the issues other than the jurisdictional prong."

Late last week, coal industry officials said they hoped that the 4th Circuit ruling ends the battle over valley fills.

"I think the ruling is an endorsement of the way that the state has been doing things," said Bill Raney, president of the West Virginia Coal Association.

"I hope we've heard the last of this," Raney said. "Let's get on with business."

In a statement to his company's shareholders, Massey Coal Services Chairman Don Blankenship said he hopes the appeals court decision frees up new mining permits pending at DEP.

"Although the 4th Circuit decision may not have an immediate impact on the permit approval process, it is a positive step toward removing a threat that has loomed over the West Virginia coal industry for the past 18 months," Blankenship said.

In October 1999, Chief U.S. District Judge Charles H. Haden II ruled that the buffer zone rule prohibited valley fills in perennial and intermittent streams. These fills are allowed only in smaller, ephemeral streams, the judge said.

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 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 that 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 and 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 group 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 group lawyers said 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 the buffer zone 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 his Oct. 20, 1999, ruling, Haden said the citizens were right. The judge blocked DEP from issuing any permits that allowed valley fills in perennial or intermittent streams.

"When valley fills are permitted in intermittent and perennial streams, they destroy those stream segments," Haden wrote in his opinion. "No effect on related environmental values is more adverse than obliteration.

"Under a valley fill, the water quantity of the stream becomes zero," he wrote. "Because there is no stream, there is no water quality."

Lawyers for the coal industry, the DEP and the United Mine Workers appealed Haden's decision.

On Tuesday, the 4th Circuit panel rejected Haden's ruling. But because the panel ruled that Haden didn't have jurisdiction to hear the case, the 4th Circuit never decided who was right about the buffer zone issue.

The 4th Circuit addressed the central issues in the case only in a brief section that provided background on the mountaintop removal controversy. In that section, the appeals court adopted the industry term "mountaintop mining," rather than the legally correct "mountaintop removal."

"The disruption to the immediate environment created by mountaintop mining is considerable and has provoked sharp differences of opinion between environmentalists and industry players," the panel's opinion said.

The court cited an August 1997 expose on mountaintop removal by Penny Loeb of the U.S. News and World Report.

"As Loeb reported these differences of opinion, environmentalists decry the 'startling' change in the topography, which leaves the land more subject to floods, results in the pollution of streams and rivers and has an 'incalculable' impact on wildlife," wrote Judge Paul V. Niemeyer in the panel decision. "The coal companies concede that the process changes the landscape, but note on the positive side that land is reclaimed, that grass, small shrubs and trees are planted, and that waterfowl ponds are added. Moreover, the companies observe that mining is critical to the West Virginia economy and creates high-paying jobs in the State."

Coal industry officials attacked Haden's ruling, saying it put these jobs at risk. Industry lobbyists and former Gov. Cecil Underwood argued that the ruling would end all coal mining in West Virginia. In court documents, they provided little proof of this claim.

About a week after his ruling, Haden suspended an injunction that would have blocked the DEP from issuing any new mining permits with valley fills in perennial and intermittent streams.

Since then, coal companies have continued to receive new permits that included large valley fills, according to DEP records. West Virginia coal production has also remained steady.

Last week, the U.S. Department of Energy said that West Virginia produced 158 million tons of coal during the 12 months that ended April 21. That's an increase of 2 percent over the previous 12 months, according to DOE figures.

In March, there were about 16,500 coal miners working in the state. That is about 1,000 more than were working in March 2000, according to figures from the state Bureau of Employment Programs.

Last week, lawyers for the Highlands Conservancy were privately debating what legal step they would take next. They could ask the full 4th Circuit to reconsider the panel's decision, or they could try to go directly to the U.S. Supreme Court.

In the meantime, citizen groups are concerned that the rejection of Haden's decision will prompt DEP to issue a slew of new valley fill permits.

"Nothing has changed about our belief that the law says that you can't do these big fills in perennial and intermittent streams," said Cindy Rank, the Highlands Conservancy's mining chairwoman. "But the political pressure to permit these big fills is going to be huge.

"We need DEP to have a backbone that heretofore it has not had, and we need our new governor to show the wisdom to limit the size of these fills."

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

348-1702.


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