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Board rules for DEP in valley fill case

The state Surface Mine Board has dealt environmentalists a setback in one of their legal efforts to curb mountaintop removal coal mining.

Board members ruled 5-1 that a stream buffer zone rule does not apply to valley fill waste piles, the board chairman said Monday.

The board also ruled that the state Department of Environmental Protection properly enforces rules governing the topsoil mine operators use in reclamation.

Board members provided little explanation for their rulings, which were announced in a three-page letter to the parties.

The board declined to write its own formal findings, and instead instructed DEP lawyer Tom Clarke to prepare an order based on the letter.

Lawyers for the West Virginia Highlands Conservancy are expected to appeal to circuit court. The case will likely end up in a major legal fight before the state Supreme Court.

In the case, the conservancy challenged DEP 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.

On the central issue in the case, conservancy lawyer Joe Lovett wanted the board to conclude that the stream buffer zone rule prohibits coal operators from burying certain streams with waste rock and dirt.

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.

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.

Board members voted 5-1 that the “buffer zone rule does not apply to valley fills,” board Chairman Tom Michael wrote in his Monday letter to the parties.

Board members Paul Nay, Henry Rauch, Ed Grafton, Stephen Capelli and Randy McMillion voted that the rule does not apply. Michael dissented.

In his letter, Michael said only that the board members who voted that the rule does not apply to valley fills did so “for the reasons stated in the briefs of the DEP” and Coal-Mac Inc., whose permit was challenged in the case.

DEP and industry lawyers had argued that, if applied to valley fills, the buffer zone rule would outlaw most coal mining in West Virginia.

Michael said he believes that the rule applies “for the reasons stated in the briefs of the WV Highlands Conservancy.”

On the topsoil issue, board members decided 4-2 to defer to DEP’s judgment that coal operators can use gray sandstone as a substitute for topsoil when they reclaim mine sites.

Michael and Rauch ruled with the conservancy that “brown weathered sandstone is the best available topsoil substitute because of the smaller particle size leading to higher soil moisture available for tree growth, and because the [acidity] is better, at least in the early years, for tree growth.”

Board members unanimously agreed with the conservancy that mines that would discharge the toxic metal selenium “may require special handling.”

The board said it would add a permit condition for this handling to the Coal-Mac permit, but that DEP had already added sufficient language.

Also in the case, board members with ties to the coal industry refused a conservancy request that they recuse themselves.

In his letter, Michael noted that McMillion works for a coal company and Capelli does consultant work for a coal company. Michael also said that his Clarksburg law firm represents a coal company.

“However, none of the members of the board receives or has received, within the preceding two years, direct or indirect financial compensation from Coal-Mac,” as that term is defined in West Virginia law, Michael wrote.

Michael wrote that “the general interest of board members in issues relating to the coal industry and environmental protection does not require disqualification.”

He added that the board agreed with DEP, which argued that “absent some direct connection to Coal-Mac or its activities on the permit at issue, a board decision on issues of general ‘import for the statewide surface mining industry’ will have no greater impact on the board members the WVHC seeks to recuse than anyone else in the class of persons with such ties.”


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