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EPA trying to hurry mountaintop mining lawsuit

The regional administrator of the U.S. Environmental Protection Agency is pushing environmentalists to settle a lawsuit over mountaintop removal coal mining.

EPA Region III Administrator Michael McCabe met for several hours Monday afternoon with lawyers and activists from the West Virginia Highlands Conservancy.

Pat Boyle, McCabe's press spokesman, confirmed that McCabe was asked by the U.S. Department of Justice to attend the meeting and promote a proposed settlement.

"DOJ asked McCabe to come down there and try to move these discussions along," Boyle said Tuesday. "This is the government's attempt to settle this litigation."

Mountaintop removal blasts off hilltops to uncover valuable low-sulfur coal seams underneath. Leftover rock and earth is dumped into valleys, burying streams.

In mid-July, the conservancy and a group of coalfield residents filed a federal court lawsuit that alleges mountaintop removal mines have been illegally permitted. Named as defendants in the suit are the state Division of Environmental Protection and the U.S. Army Corps of Engineers.

Among other things, the lawsuit alleges the corps has illegally permitted valley fills that destroy streams under the Clean Water Act's "dredge and fill" provisions, and that DEP has not required mountaintop removal mines to meet tough reclamation and post-mining development rules.

In legal depositions, corps officials have agreed with the allegations concerning their agency's improper permitting of valley fills.

On Dec. 9, Chief U.S. District Judge Charles Haden canceled a scheduled hearing in which the conservancy's lawyers planned to ask for an injunction to make permanent the corps' self-imposed valley fill permit moratorium.

The next day, conservancy lawyers met in Washington with Justice Department attorneys who are representing the corps in the litigation. The government lawyers proposed a plan to settle at least part of the lawsuit.

All sides have been extremely closed-mouthed about the proposal, but Boyle insisted it "is going to be pretty far reaching."

"This is a unified federal approach that is pretty much hammered out among the four agencies," Boyle said last week. "It would give a much greater level of environmental scrutiny."

Negotiations on the government side are being handled by officials in Washington. Regional and local agency officials said they know little about what's being decided.

"It's so confusing, I don't think anybody knows," said Lewis Halstead, assistant chief for permitting with the DEP Office of Mining and Reclamation.

Cindy Tibbott, environmental specialist with the U.S. Fish and Wildlife Service regional office in State College, Pa., said, "That is still all up in the air as far as I know."

Sources said it was hoped that a settlement could be announced as early as today. Without a last-minute change, those plans appear to have fallen through. A settlement could be finalized later this week, early next week - or not at all.

As proposed, the settlement would resolve only the Clean Water Act allegations about valley fill permitting.

Left to be litigated would be charges that DEP has improperly permitted mountaintop removal mines that would not be returned to their approximate original contour or propose post-mining development of flattened land.

 

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

 


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