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Judge suspends subsidence mine ruling during appeal

A federal judge has agreed to suspend a ruling that promised to protect coalfield residents from underground mine subsidence.

Earlier this week, US District Judge James Robertson in Washington stayed his ruling while the coal industry and the Bush administration appeal it.

In March, Robertson ruled that coal operators may not cause subsidence within 300 feet of homes. The judge threw out a 1999 federal Office of Surface Mining regulation that exempted subsidence from buffer zones meant to protect homes, churches, cemeteries and public lands.

When it wrote that regulation, OSM conceded in an environmental impacts study that subsidence was expected to damage 30,000 coalfield homes over the next 20 years.

The OSM regulation also threatened to allow mining to damage 15,000 acres of protected parks and other public lands, according to the OSM study.

Department of Justice lawyers, representing Interior Secretary Gale Norton and OSM, asked Robertson to suspend his ruling while the government appealed.

In a sworn statement filed with the court, OSM Director Jeff Jarrett said, “If a stay is not granted, the resulting regulatory uncertainty could have a significant near-term effect on the economy and the nation’s energy supply.

“The decision could result in a fundamental shift in access to coal, or a loss in coal reserves, for underground coal mining operations, and could possibly shut down existing mines,” Jarrett said.

“OSM estimates that precluding longwall mining would entail additional coal mining and coal-delivery costs to the economy of $2.65 billion over a period of 20 years,” he said. “The prohibition could result in large and abrupt shocks to regional economies as a result of unemployment and subsequent costs associated with displaced workers and families that would need to be retrained and relocated as the economy adjusts.”

In its own request for a stay, the National Mining Association made similar arguments.

“When the underground coal mines around this nation have to close or curtail operations because of this court’s decision, coal companies will suffer substantial and irreparable losses in their investments in coal, equipment and other property,” the association’s lawyers said. “Many employees will lose their jobs and their families and communities will suffer.”

Lawyers for the Citizens Coal Council, which sought Robertson’s ruling, argued against the order being suspended pending an appeal.

“The stay motions now before the court rest on nothing more than (1) the coal industry’s self-interest in unlawfully enhancing the profitability of longwall mining by simply ignoring the plain meaning of [the surface mining law] and (2) the untoward interest of the secretary in fostering the use of that technology in inappropriate settings at the cost of respecting the law she was sworn to uphold.”

Lawyers for the citizens group also noted that OSM found in its study of the issue that many coalfield residents would give companies a waiver to subside the ground near their homes.

In its study, OSM found that “if the rate at which homeowners and public officials actually withhold waivers for occupied dwellings and public roads proves to be eight percent of less, the economy would enjoy a net benefit.”

In granting the stay, Robertson said, “this case raises a serious legal question and the balance of equities favors maintaining the status quo during the appeal.

“While the plaintiffs argue that they too would face the risk of irreparable injury from subsidence if a stay were granted during the pendency of the appeal, that risk is cabined by statutory and regulatory provisions that require mine operators to prevent or minimize material subsidence damage and to mitigate and compensate for such effects.”

Robertson also noted that if the government “wishes to minimize the industry upheaval and the risk of a ‘regulatory vacuum’ that [OSM] describes in her motion, she should begin preparing a new rule consistent with the court’s opinion now, so that new standards can be in place as soon as possible after the appeal is resolved.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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