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More time - or less - wanted in mining lawsuit

Lawyers for environmentalists and coalfield residents want a speedy hearing on a lawsuit which seeks to curb mountaintop removal coal mining.

Attorney Joe Lovett this week asked a federal judge to expedite depositions of officials from the Army Corps of Engineers.

Lovett also asked for an early hearing on a request that the judge rule that corps does not have legal authority to permit coal companies to dump mine waste into disposal piles called valley fills.

At the same time, lawyers for the state Division of Environmental Protection asked for more time to respond to the allegations in the suit.

Chief U.S. District Judge Charles Haden gave DEP an additional 40 days, until Sept. 16, to respond to the lawsuit. Originally, DEP would have been required to file its answer this week.

Russ Hunter, a lawyer for the DEP Office of Mining and Reclamation, said he needed more time to sort out issues raised by the suit.

"It's complex litigation," Hunter said Wednesday.

The lawsuit was filed in mid-July by the West Virginia Highlands Conservancy and a group of residents from Boone, Logan and Mingo counties. It alleges that mountaintop removal mines violate the Clean Water Act and the federal Surface Mining Control and Reclamation Act.

Among the key allegations is one that the corps cannot permit valley fills under the "dredge and fill" provisions of the Clean Water Act.

In court papers filed Tuesday, Lovett alleged that corps officials in Huntington and Cincinnati have conceded they can't legally permit valley fills.

The papers alleged the corps has made those concessions in private conversations, and in newspaper interviews, but refused to state them in writing to Lovett.

Lovett asked to schedule depositions later this month of corps officials Rodney Woods, Richard Buckley and John Studt to force them to disclose a "secret agency law" regarding valley fills.

Valley fills, Lovett alleged, "forever destroy streams, aquatic life, wildlife, and vegetative life in the valleys filled.

"The fills degrade the quantity and quality of water below the fills, and the blasting necessary to create the fills may cause the loss and/or degradation of springwater, wellwater and streamwater used by those living beneath the fills for drinking and other household purposes," Lovett alleged.

"It is, therefore, necessary for corps officials to state immediately the corps' official position in regard to its policy and its authority to authorize this extremely destructive and widespread activity," Lovett wrote.

"This is not merely an abstract policy or jurisdictional issue," he wrote. "The corps' authority and policy is currently and dramatically affecting the State's wildlife, aquatic life, streams, forests, mountains, and valleys as well as the communities below the valley fills. It is, to say the least, difficult to understand how such a policy can be kept secret."

Haden did not immediately rule on Lovett's motion.

In the court papers filed Tuesday, Lovett also noted that the suit, if successful, would not necessarily outlaw all valley fills and mountaintop removal.

"Rather, valley fills would have to be smaller and would have to be constructed in the portions of the hollows that are above the waters of the United States," Lovett wrote.

"This could be accomplished by reducing the size of the mining cut and by requiring the mining operations to place more of the mining spoils back on the mountain after mining," he wrote. "This would mirror Congress' intent when it passed the Surface Mining Act."

To contact staff writer Ken Ward Jr., call 348-1702.


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