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Mining talks get breathing room

A year ago Friday, a group of environmentalists and coalfield residents went to court to try to curb mountaintop removal coal mining.

They alleged state and federal regulators illegally allow coal operators to flatten mountains and bury streams under millions of tons of rock and earth.

"The mountaintop removal mining taking place in West Virginia is in blatant violation of [environmental] laws," Jim Hecker, a Trial Lawyers for Public Justice attorney who represents citizens, said when the suit was filed.

This week, the case was scheduled to come to a head.

Lawyers for citizens, regulators and coal operators were set to start a four-week trial. Chief U.S. District Judge Charles Haden II was ready to listen to hours of complicated testimony about stream buffer zones, aquatic invertebrates and approximate original contour variances.

On Friday, all of that changed.

Haden agreed to delay the trial for three weeks, until Aug. 2. The judge gave all sides more time to hammer out the details of a settlement that could force more strict regulation of mountaintop removal.

Joe Lovett, lead lawyer for the citizens, told Haden that a draft settlement could be submitted to the judge by the middle of this week. "I believe we are very close to reaching resolution on the claims," Lovett said during a hastily convened hearing held by telephone.

Lovett said the settlement would cover "most, if not all" of the allegations against the state Division of Environmental Protection. Any allegations not included could be decided by Haden based on written legal briefs, not courtroom testimony, Lovett said.

In the last two months, DEP has issued a series of new policies to clean up its handling of post-mining land uses, hydrologic reclamation plans, contemporaneous reclamation and the approximate original contour, or AOC, rule.

"We have expressed the view that, frankly, DEP was inconsistent in its application of many of the policies that we are now potentially going to work out," said Brian Glasser, a private lawyer hired to defend DEP.

Glasser said he and Lovett were in Washington, D.C., on Friday to explain their settlement proposals to representatives of the U.S. Environmental Protection Agency, the federal Office of Surface Mining and the Army Corps of Engineers.

"We need ... to make sure that what we want to do we can do and they won't object to it," Glasser said.

Parts of the settlement involve changes in state regulations that will require legislative approval, perhaps in a special session.

DEP lawyers still maintain that another rule, creating a 100-foot buffer zone along streams, does not apply to mountaintop removal's huge valley fills.

Environmental groups insist that it does, and are not willing to give in on the issue, either. Haden will eventually have to settle that dispute, the lawyers say.

Dropped from the case Friday was Arch Coal Inc.'s fight to get the largest mountaintop removal mine in state history authorized under a blanket, general permit.

After months of fighting the idea, Arch Coal agreed to seek an individual permit to expand its Dal-Tex mine in Logan County. Individual permits require much more scrutiny, including detailed environmental studies.

The plaintiffs said the mine could only be permitted under an individual permit. Arch Coal had wanted an early trial to decide that issue.

"Despite our disappointment in failing to obtain the Dal-Tex permit, we have made encouraging progress in some of the broader, programmatic issues before the court," said Arch Coal CEO Steven Leer. Leer said the company supported postponing the trial "to give these complex negotiations the chance to succeed."

Cindy Rank, mining chairwoman of the West Virginia Highlands Conservancy, said citizens will have to keep a close watch on regulators even if a settlement is reached.

"A memo is only as good as the paper it's written on," Rank said late Friday. "The Surface Mining Act sounds good on paper, but it is still being enforced poorly.

"Whatever is written on a piece of paper or agreed to in a settlement is going to have to be followed very closely."

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


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