A landmark court settlement will allow coal operators to continue blasting the tops off West Virginia mountains and burying streams under waste rock and earth. Mountaintop removal mining will remain legal.
But the settlement will force environmental regulators to, for the first time, take a much closer look at how mowing down forests, flattening out hilltops and burying streams affect the environment.
The settlement, worked out in secret by lawyers for environmental groups and the federal government, gave one coal company, Arch Coal Inc., a new permit it desperately wanted.
However, a little-noticed part of the agreement could spell trouble for the rest of the strip-mining industry: If it works out as expected, the settlement will result in a two-year moratorium on new permits for large-scale mountaintop removal mines. No new mountaintop removal mines would be authorized until regulators complete a long-term study of the mining method's impacts and come up with ways to lessen those impacts.
Mountaintop removal mining uses explosives to blow apart hilltops and uncover valuable low-sulfur coal underneath. Huge shovels and dozers dump leftover rock and earth into waste piles called valley fills, which bury streams.
Under federal environmental laws, regulators are supposed to understand potential environmental effects - and force companies to take steps to minimize them - before permits are issued. State and federal officials conceded they don't fully understand mountaintop removal's long-term impacts.
In July, the West Virginia Highlands Conservancy and a coalition of coalfield residents filed a lawsuit in federal court to try to curb mountaintop removal.
Among other things, the lawsuit alleged that valley fills had been illegally permitted by the U.S. Army Corps of Engineers. The corps, the lawsuit alleged, improperly authorized valley fills under the "dredge and fill" provisions of the federal Clean Water Act. In legal depositions, corps officials agreed with these allegations. If upheld by the courts, this would have meant that the mining industry could no longer use valley fills to dispose of its waste.
On Dec. 23, various federal agencies and the Highlands Conservancy signed a settlement agreement that called for both short-term and long-range changes in mountaintop removal regulation.
The settlement would require the U.S. Environmental Protection Agency, the corps of Engineers, the federal Office of Surface Mining and the Fish and Wildlife Service to conduct a two-year study of mountaintop removal's environmental impacts. The study would be geared toward finding out what new types of rules are needed to limit adverse environmental effects.
Until the two-year study is complete, the settlement requires somewhat smaller environmental studies of every new mountaintop removal permit that proposes to fill in a stream with a drainage area of 250 acres or more. Only the Arch Coal Spruce No. 1 permit, proposed for near Blair, Logan County, would be exempt.
EPA Region III Administrator W. Michael McCabe, who pushed for environmental groups to approve the settlement, said in a news release: "Large surface mines will now have to undergo an exhaustive environmental assessment before they can be permitted. The comprehensive, unified federal plan will ensure that all the environmental impacts can be limited, and those that do occur will be properly mitigated."
What McCabe didn't say in his news release is that the smaller, single-permit environmental studies could each take two years to complete. That means that many large-scale surface mine permits now pending won't be issued for at least two years.
At least 18 of 40 mountaintop removal projects now on the drawing board would meet the 250-acre threshold, meaning individual studies would be required, according to EPA figures.
In an interview last week, McCabe conceded that the timing could allow federal officials to complete their more thorough study - and suggest more regulatory reforms - before any more new permits are issued.
"This clearly is going to change the way mountaintop removal is done," McCabe said. "They are going to have to undergo much more scrutiny. This is something that should have been done before, but we're going to do it now."
McCabe announced the settlement Dec. 23. Most coal industry observers and insiders haven't had much time to scrutinize the agreement in any detail. But, in interviews last week, most wanted to know if their fears of a moratorium were correct.