In blocking the largest mountaintop removal mine in West Virginia history, a federal judge last week waded into the complicated argument over whether coal operators can really rebuild the Appalachian Mountains.
Chief U.S. District Judge Charles Haden II based his ruling in part on allegations that the Arch Coal Inc. permit does not meet the federal "approximate original contour," or AOC, reclamation rule.
Haden ruled that lawyers for environmental groups have made a good case that the state Division of Environmental Protection has issued permits with no regard for the AOC standard.
"These questions are so complex and difficult that they are fair ground for litigation and thus for more deliberate investigation," Haden wrote in a 47-page ruling.
AOC is the heart of the 1977 Surface Mining Control and Reclamation Act.
Congress passed the law to make sure that coal companies put land back, as best they could, the way it was before they mined it. Under the law, operators must reclaim mined land so that it "closely resembles the general surface configuration of the land prior to mining."
Lawmakers allowed narrow exceptions. Coal operators could ignore AOC, and flatten the land, if they planned future developments, such as schools, factories or public parks.
A review of DEP permit records shows that the agency has permitted mountaintop removal mines without the required AOC variances, and without operators filing any plans for post-mining development.
Last week, Haden granted a preliminary injunction that halts the Arch Coal Spruce No. 1 Mine along Pigeonroost Branch near Blair, Logan County, until a trial in September.
As part of a larger case over mountaintop removal, environmental-group lawyers allege that DEP has permitted mountaintop removal mines without AOC variances or the required post-mining land use plans.
In his ruling on the Spruce mine, Haden noted that no one - not DEP, nor the company - disputes that the operation received a permit without an AOC variance. In that case, Haden wrote, Arch Coal subsidiary Hobet Mining is required to return the site to its approximate original contour.
DEP lawyers argued in court that whether the mine will meet the AOC rule is a judgment call. In legal terms, it is a "discretionary" decision the court must leave up to a regulatory agency, lawyers for DEP and the mining company argue.
At the same time, though, DEP officials have said they have little choice but to approve mountaintop removal mines as meeting the AOC rule, because the U.S. Office of Surface Mining has never written a regulation to more concretely define AOC.