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Mountaintop removal settlement filed

An hour after the federal courthouse closed Monday evening, lawyers for state regulators and coalfield residents walked in together and filed 50 pieces of paper that could severely limit mountaintop removal mining.

Joe Lovett, lead lawyer for the citizens, and Brian Glasser, a lawyer for the Division of Environmental Protection, delivered the documents to settle most of a landmark lawsuit filed in July 1998 to try to curb mountaintop removal.

Under the settlement:

Coal operators would have to rebuild more of the mountains they tear down or blow apart to uncover Southern West Virginia's valuable low-sulfur coal reserves.

Companies would have to make good on the 1977 Surface Mining and Reclamation Act's promise that land flattened by mountaintop removal be developed to provide communities with economic benefits once the coal is gone.

Southern West Virginia residents could receive free land from coal companies under a new "homesteading" post-mining land use for mountaintop removal sites.

Mountaintop removal applications will receive more scrutiny to make sure they protect water resources and disturb as little land as possible.

Environmental groups would help the state write a set of new regulations to further restrict mountaintop removal. Coal industry officials would also be involved.

A committee of industry and environmental group experts will be formed to periodically review mining permits to make sure they comply with the law.

The settlement, expected for weeks, appeared to be in jeopardy last week. The trial date next week was rapidly approaching, and lawyers had several times predicted a deal would be filed only to see it fall through.

Lovett and Glasser had hoped to file the settlement proposal before the courthouse doors closed at 5 p.m. Monday. A clerk in U.S. District Court allowed them into the building at 6 p.m. to file their documents. Both lawyers declined comment as they left the courthouse.

In those papers, Lovett and Glasser said the settlement represents "substantial progress towards achieving positive and innovative changes in the regulation of surface mining in West Virginia."

But they also said that more time will be needed to iron out further details of the settlement.

In court filings, the lawyers told Chief U.S. District Judge Charles Haden that DEP would accept public comments on the proposal for 30 days.

Glasser and his law partner, Ben Bailey, will "consider the comments received concerning the proposed [settlement], and ... pursue appropriate action as a result of the comments."

On Monday, Glasser sent a notice of the public comment period to Attorney General Darrell V. McGraw, Senate President Earl Ray Tomblin, D-Logan, House Speaker Bob Kiss, D-Raleigh, and Secretary of State Ken Hechler.

In that notice, Glasser also said that the settlement is expected to cost the state $810,000 this fiscal year, and about $145,000 each year thereafter:

The settlement would cost DEP about $75,000 a year to hire a new engineer and biologist.

Hiring two experts to help write new mining regulations would involve a one-time cost of $15,000 to DEP.

Quarterly meetings of the permit advisory panel would cost DEP about $40,000, and irregular meetings of a panel of experts to review mining plans would cost the agency about $30,000 a year.

DEP would pay 75 percent of the citizen groups' legal fees and expert costs. This may cost DEP about $650,000.

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.


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