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Group defends buffer rule anew

Lawyers for the West Virginia Highlands Conservancy on Tuesday renewed their fight to use a stream buffer zone rule to limit mountaintop removal valley fills.

The new legal effort eventually could take the fight over mountaintop removal to the state Supreme Court.

The conservancy wants the state Surface Mine Board to conclude that the buffer zone prohibits coal companies from burying certain state streams with waste rock and dirt from mining operations.

Joe Lovett, the group’s lead lawyer, said any other reading of the law “renders this rule nonsensical.”

Under the buffer zone rule, no mining activities are allowed within 100 feet of perennial and intermittent streams if that activity would harm water quality.

“To me, that’s very clear,” Lovett told board members. “There’s no wiggle room there. It’s plain language.”

In October 1999, U.S. District Judge Charles H. Haden II agreed with the conservancy in a federal court lawsuit over the buffer zone rule.

But in April 2001, the 4th U.S. Circuit Court of Appeals threw out the Haden decision, saying that state judges should decide the buffer zone case.

On Tuesday, the mine board, which hears appeals of state regulators’ decisions on mining permits and enforcement, started hearings on the case. The losing side at the board level will almost certainly appeal to circuit court and, eventually, the state Supreme Court.

In mountaintop removal, coal operators use explosives to blast off entire hilltops and uncover low-sulfur coal reserves. Dozers and trucks dump leftover rock and dirt — the stuff that used to be the mountains — into nearby valleys, burying streams.

Lovett told board members Tuesday that hundreds of miles of West Virginia streams have already been buried. “The scale of destruction we’re talking about here is unprecedented in the United States,” he said.

In the case, the conservancy challenged Department of Environmental Protection Secretary Stephanie Timmermeyer’s approval of an 850-acre mountaintop removal mine proposed by Coal-Mac Inc.

Coal-Mac, a subsidiary of St. Louis-based Arch Coal Inc., wants to expand its Phoenix Complex along the Logan-Mingo county line, which would bury about three miles of perennial and intermittent streams. Perennial streams flow all year. Intermittent streams flow part of the year.

DEP lawyer Tom Clarke said that the agency already examines mining applications to try to limit the size of valley fills.

“The effect on the environment is considered and it is minimized,” Clarke said.

In the case of Coal-Mac, Clarke said, the company stacked waste rock and dirt higher up on mined areas to reduce the potential size of valley fills.

Bob McLusky, a lawyer for Coal-Mac, told board members that a ruling for the conservancy is “the death penalty for the coal industry.”

McLusky also argued that board members are required to defer to DEP’s interpretation that the buffer zone rule does not block fills.

“It need not be the best construction,” Clarke said. “It need not be the only construction. It only needs to be a reasonable construction.”

Board Chairman Tom Michael, a Clarksburg lawyer appointed to represent environmentalists on the panel, disagreed.

Michael said that a previous state Supreme Court ruling said the board need not defer to DEP, but circuit courts hearing appeals of board decisions must defer to the board’s reasonable interpretations of mining law.

Lovett noted that the Bush administration proposed Jan. 7 to essentially eliminate the buffer zone rule.

But in that proposal, the U.S. Office of Surface Mining also requires coal operators “to the extent possible, using the best technology available ... minimize disturbances and adverse impacts on fish, wildlife and other related environmental values of the stream.”

Lovett said he plans to argue that language is more stringent than current DEP policies, which say that companies must only make valley fills as small as “practicable.”

Most of Tuesday’s hearing focused on two other issues where the conservancy argues DEP failed to properly apply limits to the Coal-Mac permit proposal.

On one issue, James Burger, a Virginia Tech forestry professor, testified that the company’s reclamation plan would not successfully regenerate productive hardwood trees to the site. On the other issue, conservancy lawyer Bren Pomponio said that the permit does not require Coal-Mac to test rock and soil at the site for the toxic chemical selenium.

The mine board is scheduled to continue hearing the case on Feb. 5.


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