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Judge agrees to delay mining trial

A federal judge said Friday he will delay a trial in a case over mountaintop removal mining to give regulators and environmentalists more time to work out a settlement.

Chief U.S. District Judge Charles Haden II said he would postpone the trial, scheduled to start Tuesday, until Aug. 2.

Haden ruled just hours after Arch Coal Inc. said it would give up its fight to get the largest mountaintop removal mine in state history authorized under a blanket Clean Water Act permit.

The case before Haden focuses on allegations of widespread problems in the state Division of Environmental Protection's permitting of mountaintop removal. Part of the case also involves a challenge to a single Arch Coal permit.

During a hearing Friday, lawyers for all sides said they were close to an agreement on most of the issues in the case against DEP. The lawyers asked, and Haden agreed, to dismiss the case against the Arch Coal permit.

Haden also warned the lawyers that he wanted to keep control of the case.

"Be very careful that you don't eliminate federal jurisdiction," the judge said.

"I want to see this case through to conclusion," he said. "I don't have to try it all, but I want to maintain jurisdiction."

Arch Coal subsidiary Hobet Mining fought for months to have the U.S. Army Corps of Engineers approve the 3,100-acre expansion of its Dal-Tex mine in Logan County under a general, nationwide permit that requires little scrutiny by regulators.

In a news release, St. Louis-based Arch Coal said most of the 400 United Mine Workers employed at Dal-Tex would be laid off while the company applies for a more rigorous individual permit.

Environmental studies required for an individual permit could take up to two years. But Arch Coal said the corps agreed to "expedite the processing" of the individual permit.

"Needless to say, this announcement is tragic news for the nearly 400 UMWA members who will suffer greatly because of today's decision by Arch," said UMW President Cecil Roberts.

"Not only will these fine working men and women suffer, but so will their families and the communities where they live."

In a prepared statement, Roberts added, "During the course of this debate, the UMWA has taken considerable heat for intervening to try and expedite a permit, but I make no apologies for doing what I did - and for what the union did.

"The UMWA's primary function, contrary to what some may believe, is to fight to protect the jobs of its members," he said.

Arch Coal says it has run out of coal to mine on its current Dal-Tex permits and wants to move the mine east into Pigeonroost Hollow near Blair.

In early March, Haden blocked the corps from issuing a permit for the move. The judge said lawyers for citizens groups made a strong argument that the operation was big enough to require an individual permit.

Two weeks ago, the corps withdrew its proposed approval of the mine under a nationwide permit. The agency said its lawyers were convinced they couldn't successfully defend the nationwide permit authorization.

"The corps' decision to withdraw the previously granted nationwide authorization leaves us with no option but to seek an individual permit," said Steven Leer, Arch Coal's CEO.

"We had continued to pursue the nationwide authorization in an effort to avoid a lengthy shutdown of the mine," Leer said. "It is deeply regrettable that the corps' about-face on this issue has extinguished any hope the company had of avoiding such a shutdown and keeping the nearly 400 Dal-Tex employees working."

Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, expressed mixed feelings about Friday's developments.

"The biggest permit in the state of West Virginia deserves the extra scrutiny that an individual permit requires," Rank said. "It's good that [Arch Coal] has come to the realization that they need to do something a little differently.

"I think it was inevitable, just because they were moving ahead so strongly with a permit they knew was flawed," she said.

"That doesn't make it any better for the miners, but the communities that would be destroyed and the people affected by the mining will benefit from this," she said. "It's always a balancing act, no matter which way the permit goes."

During a hearing Friday afternoon, Arch Coal lawyer Bob McLusky told the judge the company's decision "relieves the urgency for the trial for next week."

DEP and the plaintiffs wanted to delay the trial to continue work on their settlement negotiations. Arch Coal and the UMW had urged Haden to go ahead with next week's trial. They wanted a quick decision on the Spruce mine to lessen the effects of any layoffs.

On Friday morning, McLusky filed a two-page motion to dismiss Arch Coal's request that Haden stop the corps from withdrawing its proposed approval of the Spruce No. 1 Mine.

McLusky said that Hobet Mining would apply for an individual permit from the corps and submit a revised permit application to the DEP.

In his motion, McLusky said the new DEP application would be based on a revised definition of the approximate original contour reclamation rule being negotiated by industry and environmental groups.

McLusky said the revised DEP application should render "moot all remaining issues" critics have raised about the Spruce mine.

But the revised permit will probably end up back in court again later.

Jim Hecker, a Trial Lawyers for Public Justice attorney representing environmentalists, said plaintiffs planned to continue arguing that valley fills proposed by the Spruce mine would violate stream buffer zone regulations.

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


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