Lawyers for coal companies, environmental groups, regulators and miners are waiting for a federal judge to decide whether a stream buffer zone rule protects creeks from valley fills.
A ruling from Chief U.S. District Judge Charles Haden II on the issue will decide who has the upper hand in a high-profile case over mountaintop removal mining, lawyers say.
Environmentalists say the state Division of Environmental Protection ignores the buffer zone rule when it permits mountaintop removal mine valley fills.
Coal companies argue that the rule does not apply to valley fills. Lawyers for DEP and the United Mine Workers agree, court records show.
During private negotiations, the four parties have made progress on many other issues. But none will move on the buffer zone rule. They won't agree on the other matters until the buffer zone is resolved.
"I don't think we'll change our mind on that issue," Ken Wood ring, executive vice president of Arch Coal Inc., said.
St. Louis-based Arch Coal is West Virginia's top coal producer, and the industry's main proponent of mountaintop removal. Arch operates four of the state's five largest surface mines. All are mountaintop removal complexes.
Last year, four Arch Coal subsidiaries intervened in the federal court mountaintop removal case. The West Virginia Highlands Conservancy sued the DEP and the Army Corps of Engineers to try to curb mountaintop removal.
In early March, Haden issued a preliminary injunction that halted permits for Arch Coal to expand its Dal-Tex mine near Blair, Logan County.
Haden has scheduled a July 13 trial on the Dal-Tex permit, and on a larger case which accuses regulators of "a pattern and practice" of issuing illegal mountaintop removal permits.
Last month, lawyers for the conservancy and other citizens asked Haden to issue a summary judgment on several issues in the case. In summary judgment motions, lawyers argue that there are no disputed material facts, and ask judges to rule solely on legal interpretations.
Since then, lawyers for all sides have file several hundred pages of briefs and exhibits. Haden has not indicated when, or if, he will rule.
The most important issue raised in the summary judgment motion is how the buffer zone rule applies to valley fills, lawyers involved in the case say.
Mountaintop removal blasts off hilltops to uncover coal seams. Leftover earth is shoved into hollows, burying streams under waste piles called valley fills.
Under the 1977 federal Surface Mining Control and Reclamation Act's buffer zone rule, no mining activity is generally allowed within 100 feet of streams.