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Mining case could be decided on summary judgment

In a move that could decide the case, environmentalists have asked a federal judge to quickly rule on two major issues in a lawsuit over mountaintop removal coal mining.

Environmentalists want U.S. District Judge Charles Haden to determine if state regulators ignore requirements that mine operators maintain a buffer zone around streams and restore mined land to its approximate original contour.

Lawyers for the environmentalists said in court papers that all sides of the suit would prefer for Haden to decide those issues based on a summary judgment motion.

"Plaintiffs file this motion now because expeditious final resolution of these counts may narrow the issues for trial or even make a trial unnecessary," environmental lawyer Joe Lovett wrote.

"All parties to the action agree that these counts present legal questions appropriate for resolution on summary judgment and that prompt resolution of the questions would allow all parties to better plan future actions."

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

The judge has scheduled a trial for mid-July on the Dal-Tex permit, and on a broader case that alleges that most mining permits issued by the state Division of Environmental Protection don't comply with federal environmental rules.

When Haden moved up the trial date from September, he said he would set time aside in the case schedule for lawyers to file summary judgment motions. In summary judgment motions, lawyers contend that there are no matters of fact at issue in a case and ask a judge to rule solely on the judge's interpretation of the law.

On April 9, Lovett and other environmental lawyers filed a summary judgment motion anyway.

"DEP has failed to demand compliance with two of the most important requirements of the Surface Mining Act: protection of 100-foot buffer zones around perennial and intermittent streams and restoration of valley fill areas to their approximate original contour," the motion stated.

Lovett's motion alleges that DEP cannot exempt valley fills from the buffer zone requirement because dumping millions of tons of rock and dirt into streams does not meet federal water quality standards. "Such an exemption violates both the clear language and intent of the regulation," Lovett's motion alleges.

The motion states that, "The enforcement of the buffer zone rule will not prevent valley fills or mountaintop removal mining, although it will reduce the size of the larger fills currently being approved."

According to the motion, enforcement of the buffer zone rule would still allow fills to be permitted in the upper reaches of streams, called ephemeral streams. A report filed by one of Lovett's scientific experts, Charles Norris, states that there are many miles of such streams that could be used for valley fills.

Also in his motion, Lovett argues that DEP has misinterpreted the law to exempt valley fills from the AOC reclamation requirement.

Other parties to the lawsuit have until Friday to respond to Lovett's summary judgment motion.

 

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

 


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