In a motion filed with the settlement proposal, the lawyers told Haden, "The parties have been working diligently to settle this case.
"In addition to the proposed Consent Decree, the parties have attached negotiators' working papers for implementing the provisions of the Consent Decree," they said. "The negotiators' clients have not yet approved the language contained in the working papers.
"Not only will it take a significant amount of time to draft the complete regulations and policies, but it will take much time to receive approval from federal agencies," the lawyers said. "The parties, therefore, agree that more time is required to implement the provisions of the decree."
Lovett and Glasser asked Haden to postpone a trial, scheduled to start next Monday, and allow them to report back to the judge by Sept. 1 on their progress.
That motion was also signed by lawyers Pat McGinley and Suzanne Weise, who represent the West Virginia Highlands Conservancy, Warren Upton, who represents the West Virginia Coal Association, and Bob Pollitt, who represents Western Pocahontas Properties, a land company.
Roger Wolfe, a lawyer for Arch Coal Inc. and Perry McDaniel, lawyer for the United Mine Workers, did not sign the motion. They said they would comment later on the settlement agreement.
The settlement does not resolve a dispute over whether a federal 100-foot stream buffer zone rule prohibits coal companies from burying streams beneath valley fill waste piles.
Lawyers for DEP and the citizen groups asked Haden to decide that issue based on legal briefs, rather than testimony at a trial.
The lawyers asked Haden to give them until Aug. 9 to file initial briefs, and three weeks after that to file various responses and replies. They also asked Haden to schedule a hearing as soon as possible "to address the Court's questions and to establish a revised schedule for this action."
To contact staff writer Ken Ward Jr., call 348-1702, or e-mail kw...@wvgazette.com.
Proposed mountaintop removal settlement
Here is a summary of the consent decree that could settle a landmark federal court lawsuit over mountaintop removal mining:
Approximate original contour - Environmental groups, regulators and the coal industry will develop a joint plan to tighten the definition of the approximate original contour reclamation requirement. Under the definition, coal operators would have to "optimize" the amount of rock and earth put back on mountaintops, and minimize the amount dumped into valley fills.
AOC variances - The state Division of Environmental Protection will start to properly enforce the limitations on obtaining AOC variances to flatten mined land. By Oct. 15, DEP will propose new rules to require coal operators to demonstrate a market and need for post-mining land uses proposed for flattened mine sites.
Commercial woodlands - DEP will, by Oct. 15, propose new regulations to tighten the requirements for commercial woodlands as a post-mining land use for mountaintop removal. The parties to the lawsuit "shall work together to assure commercial tree growth" is required by these regulations. DEP will hire two forestry experts from Virginia Tech to act as consultants.
Homesteading - By Oct. 15, DEP will propose new regulations to make homesteading an approved post-mining land use for mountaintop removal sites. The regulations will make mined sites from 1 to 40 acres in size available to West Virginia residents 18 years of age and older whose gross household income is less than $60,000 a year. Homesteaders will receive title to the land if they live there for at least five consecutive years. To qualify for this post-mining land use, coal operators must install roads, electricity and water supplies for residents. Homesteaders will receive title only to the portion of the land that they actually used and improved during the five-year period. Homesteaders must install adequate septic systems on their plots before they move onto the land.
Hydrologic reclamation plans - DEP will, by Oct. 15, propose new regulations to include in permit applications a section on reclaiming streams affected by mining. DEP will also write a policy on how permits can restore, protect or replace streams to pre-mining conditions.
Contemporaneous reclamation - DEP will start to enforce contemporaneous reclamation rules that require mining and reclamation of sites to occur as closely to each other as possible. DEP will also make it harder for operators to receive variances to the contemporaneous reclamation requirements, by enforcing the restrictions on those variances.
Bonding - DEP will, by Oct. 15, write rules to make it tougher for coal operators to get reclamation bond money back after mining. A bigger percentage of bonds would be held back for refund during the later stages of reclamation, and companies could not get final bond release until post-mining development infrastructure is in place.
Permit review committee - A five-member "permit quality control advisory committee" will be appointed to evaluate and improve quality control in mountaintop removal permitting. Two members of the committee will be appointed by Mountain State Justice, a public-interest law firm representing citizens in the case. Two members will be appointed by coal industry groups, and one member will be appointed by the U.S. Office of Surface Mining. The committee will meet for three days every four months.
New DEP positions - DEP will create new positions for and hire, by Oct. 1, a trained and qualified engineer and a biologist to oversee implementation of the new AOC and post-mining land use rules. The pair would also coordinate meetings of the permit review committee and follow up on committee recommendations.
Attorneys' fees - The DEP would pay 75 percent of the legal fees and costs for citizens groups who filed the suit. Currently, the DEP's share is estimated at $650,000.
- Compiled by staff writer Ken Ward Jr.