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DEP hires outside lawyers to defend it in mining case

The Underwood administration has hired an outside law firm to defend the agency against a federal court lawsuit filed by environmentalists who want to curb mountaintop removal mining.

State Division of Environmental Protection Director Michael Miano hired the new firm Bailey and Glasser to represent the agency in the case pending before Chief U.S. District Judge Charles Haden II.

Attorney General Darrell McGraw approved the move on Friday when he appointed lawyers Ben Bailey and Brian Glasser as special assistant attorneys general.

Bailey will be paid $195 per hour and Glasser $150 per hour, said DEP spokesman Andy Gallagher.

Bill Adams, DEP's chief in-house lawyer, said Bailey and Glasser were hired because, "As Judge Haden's preliminary rulings in this matter indicate, more resources are needed to responsibly educate the federal judiciary so that a just and fair result may be achieved."

On March 3, Haden issued a preliminary injunction that blocked permits for Arch Coal Inc. to expand its Dal-Tex mountaintop removal mine in Logan County.

In July 1998, the West Virginia Highlands Conservancy and other environmentalists filed a suit that accused the DEP of a "pattern and practice" of approving mountaintop removal permits that violate federal mining and water polllution laws.

Federal regulators settled part of that suit. They agreed to put most mountaintop removal permits through additional scrutiny, but exempted the Dal-Tex expansion from that requirement.

Environmentalists went to court to try to force Dal-Tex to be included. Haden halted the Dal-Tex permits until he can hold a trial on the rest of the "pattern and practice" case. The trial is scheduled for July 13.

In an April 7 letter to Deputy Managing Attorney General Barbara Allen, Adams wrote that DEP's 10 lawyers are too busy with other matters to handle the mountaintop removal case.

"I think all involved would agree that the prospect of long-term job loss and the regulatory instability occasioned by this case establishes it as the most important case pending in Southern West Virginia," Adams wrote. "Indeed, a literal interpretation [of the complaint] would virtually call for the banning of coal mining in Southern West Virginia.

Bailey and Glasser, who recently left the firm Bowles Rice McDavid Graff & Love to form their own firm, will handle only the trial and preparation for the trial.

In-house DEP lawyers will continue to work on settlement negotiations, meetings over mountaintop removal with other agencies, and "meeting with and providing relevant information to" industry groups that intervened in the case, Adams said.

Bailey was a top aide to former Republican Gov. Arch Moore and is a former assistant U.S. attorney. Glasser was a Rhodes Scholar from West Virginia University.

Gallagher said that Bailey usually charges $230 per hour, but cut his rate to match the $195 per hour that Pat McGinley, a West Virginia University law professor, charges when he recoups legal fees from suing state agencies that ignore the law.

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


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