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DEP wants company in coal mining suit

If the state Division of Environmental Protection is being hauled into federal court over mountaintop removal coal mining, agency officials don't want to go it alone.

DEP lawyers filed papers this week stating that two additional federal agencies should have been named as defendants in the suit filed by the West Virginia Highlands Conservancy.

The suit already named the U.S. Army Corps of Engineers, along with DEP, as a defendant. DEP lawyers claimed it should also have named the U.S. Environmental Protection Agency and the federal Office of Surface Mining.

Lawyers for the Highlands Conservancy and a group of Southern West Virginia residents filed the suit in mid-July. They allege mountaintop removal mines have been permitted in violation of the 1977 Surface Mining Control and Reclamation Act and the federal Clean Water Act.

In a motion filed Tuesday by chief DEP lawyer Bill Adams, the state did not technically ask that EPA and OSM be forced into the case.

Instead, Adams asked that the case be dismissed because lawyers for the Highlands Conservancy did not sue EPA and OSM. Adams said both agencies are "indispensable parties" to the case.

Adams wrote that OSM is supposed to make sure that DEP permits mines in compliance with the federal strip mining law, and should be involved in any suit alleging the state isn't doing so.

"By failing to join OSM in this action and alleging programmatic failures on the part of WVDEP, plaintiffs are inviting the court to assume the role of state program oversight that SMCRA assigns to OSM," Adams wrote.

As for EPA, Adams wrote that the question of whether valley fill strip mine waste piles violate the Clean Water Act must be decided with input from EPA.

"A complete adjudication of the legality of the construction of valley fills under SMCRA and the CWA requires the presence of EPA in this action," Adams wrote.

In his motion, Adams did not challenge any of the central allegations of the Highlands Conservancy suit.

The other current defendant, the Corps of Engineers, did not file a motion to dismiss the case before the Tuesday deadline doing so. Corps officials have recently said they agree with several key allegations of the suit.

Lawyers for three Arch Coal Inc. subsidiaries filed their own motions asking that the mountaintop removal suit be dismissed.

In one of those motions, Jackson & Kelly lawyer Robert G. McLusky argued that if the court rules valley fills are illegal, it will destroy the Appalachian strip mining industry.

"Without valley fills and refuse impoundments, the coal industry could not exist in mountainous areas," McLusky wrote.

"The plaintiffs oppose large-scale surface mining, known popularly as 'mountaintop mining,'" McLusky wrote. "Their attack, however, is far broader. It challenges practices used by virtually all coal mines in the mountainous areas of West Virginia."

The case is before Chief U.S. District Judge Charles Haden.

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


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