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Delay requested in mountaintop removal trial

Lawyers for coalfield residents asked a federal judge on Monday to delay a July 13 trial in a landmark lawsuit over mountaintop removal mining.

At the same time, Arch Coal Inc. and the United Mine Workers requested that the judge stop the U.S. Army Corps of Engineers from withdrawing its proposed approval of the largest mountaintop removal mine in West Virginia history.

Lawyers for all sides filed a flurry of motions late Monday, hours after a pre-trial conference with Chief U.S. District Judge Charles Haden.

Haden did not immediately rule on any of the requests.

"You know the stakes are high," Haden told about 20 lawyers who attended the 45-minute pre-trial conference.

"The worst thing that could come out of this litigation would be no resolution," Haden said. "If I could address all of the issues in this lawsuit, I would like to do that."

In the July 1998 lawsuit, the West Virginia Highlands Conservancy and a group of coalfield citizens allege the state Division of Environmental Protection routinely issues mountaintop removal permits that violate federal and state laws. The lawsuit also alleged that the Corps of Engineers routinely violates the Clean Water Act when it permits mountaintop removal valley fills.

In December, the Corps settled its part of the lawsuit by agreeing to perform additional environmental reviews before issuing permits. But Arch Coal's proposed 3,100-acre Spruce No. 1 Mine was exempted from that settlement, meaning it would not receive the additional regulatory scrutiny.

In early March, Haden issued a preliminary injunction that halted permits for the Spruce Mine.

Last week, the Corps withdrew its proposed approval of the Spruce Mine, saying its lawyer, Steven Rusak, did not think the agency could win a further court battle. The Corps said Arch Coal would have to undergo additional scrutiny, like other new mines. Then the agency asked to be dropped from the suit.

During Monday's meeting, Rusak said the Corps took its action not because of "new material facts" Rusak had cited in a letter to Haden, but because of "a change in opinion due to a re-evaluation of the project."

Joe Lovett, lead lawyer for the citizens, said the Corps action means there is no need to rush the trial. Lovett said that coal industry and DEP lawyers are "very close" to settling their case against state regulators.

"The negotiations for settlement are very complex and will require the rewriting of regulations," Lovett said. "We have an opportunity to breathe a little bit, and accomplish what needs to be accomplished."

In late March, Haden moved up the trial date from September. Arch Coal and the UMW asked for the change. They said an earlier trial might mean shorter layoffs for 400 UMW members.

Arch Coal lawyer Roger Wolfe told Haden that the Corps had overstepped its authority in withdrawing the Spruce Mine permit.

In a cross-claim filed late Monday, Wolfe alleged the Corps ignored its own regulations and violated Arch Coal's due process rights. "At no time was [Arch Coal] given any ... notice or opportunity to be heard, or even learn the reasons for the revocation of the authorization," Wolfe wrote.

UMW lawyers filed a similar cross-claim against the Corps, and asked Haden to decide the matter in time to lessen the impact of layoffs.

"Four hundred of my guys are going to get laid off at the end of July," said union lawyer Perry McDaniel. "That's why we moved the trial. We need a decision on the Spruce Mine sometime in the month of July."

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


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