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Judge approves partial mining case settlement; talks continue

A federal judge on Thursday approved a partial settlement of a lawsuit over mountaintop removal, paving the way for environmental agencies to more tightly regulate mining.

Chief U.S. District Judge Charles Haden II rejected coal industry arguments that strict regulation would be a severe and unfair hardship on mine operators.

"Predictable delays to mining permits are insufficient to derail an otherwise fair, reasonable and lawful settlement agreement executed by a federal agency," Haden wrote.

Haden ruled Thursday only on a proposal by regulators and environmental groups to settle claims that the U.S. Army Corps of Engineers illegally allowed mine operators to bury streams with valley fills.

At the same time, negotiations continued on a long list of other allegations that the state Division of Environmental Protection ignored federal laws in permitting mountaintop removal mines.

Those claims are scheduled to go to trial before Haden on July 13.

"There are significant negotiations going on," said one source close to the talks. "This is a resolvable problem."

Bill Raney, president of the West Virginia Coal Association, said his organization agreed Thursday to continue talks based on a broad set of possible terms under which environmentalists might consider dropping their suit.

According to Raney, those terms include a further tightening of the approximate original contour definition, limiting possible post-mining land uses for mountaintop removal, and mitigating area lost to mountaintop removal with coal company donations of land for public uses.

"All of these things are still up for discussion and we need to get on with those discussions and see if some resolution can be reached," Raney said.

Representatives of the West Virginia Highlands Conservancy have declined to comment on a June 12 meeting at which their group's board of directors discussed a potential settlement.

Frank Young, the conservancy president, said that all parties to the suit agreed not to discuss the negotiations.

"I can't even confirm that we met right now," Young said. "This is sensitive stuff."

Mountaintop removal blasts off entire hilltops to uncover coal seams underneath. Leftover rock and earth are dumped into nearby valleys, burying streams under valley fills.

A year ago, the conservancy and a group of coalfield residents filed a lawsuit in federal court to try to curb mountaintop removal.

In late December, the environmentalists signed an agreement with the Corps, the U.S. Environmental Protection Agency, the federal Office of Surface Mining and the Fish and Wildlife Service. Environmentalists would drop part of their lawsuit; agencies would make both long- and short-term changes in mining regulations.

In the long-term, the federal agencies would conduct a two-year impact study of mountaintop removal's environmental impacts. When the study was finished, regulators would use its findings to write improved mining regulations.

In the meantime, regulators would have to perform environmental assessments - studies somewhat less rigorous than environmental impact studies, but more thorough than previous permit practices - on all new mountaintop removal proposals.

Haden wrote that the settlement, "provides a rational approach to resolving the claims against the Federal Defendants and to addressing the larger issues raised in this case, with input and coordination among the various affected federal and state agencies.

"Moreover, it supplies an incrementally more efficient and logical method of reviewing all permit applications submitted and necessarily required before a company can proceed with mining operations," the judge wrote.

"Finally, the Agreement is in the public interest by resolving, in a fair, adequate and reasonable manner, issues that presented risks to both the environment and economy," he said.

Haden rejected coal association arguments that the settlement would cost 2,800 industry jobs.

The judge noted the estimate was based on "an informal poll of several member companies concerning the expected losses that would result from such a delay.

"The affidavit states it will identify the names of the companies only ëif requested by the Court,' and only identifies in two instances whether, factually, the permit applications referred to are of such a size and nature as to be so affected by the Agreement," Haden wrote.

In his ruling, Haden also said he would retain "jurisdiction to interpret and enforce the Settlement Agreement until it has been fully performed."

To contact staff writer Ken Ward Jr., call 348-1702 or e-mail kw...@wvgazette.com.


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