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Settlement won't make mining issue go away, lawyers say

A federal court lawsuit settlement won't make the mountaintop removal issue go away, lawyers for coalfield citizens and the state told a legislative committee Monday.

Joe Lovett, a lawyer for the citizens, told lawmakers that the settlement is only part the answer to reducing mining's impacts on the environment and Southern West Virginia residents.

"It will not end mountaintop removal mining," Lovett said. "It will create a way to stop the worst reclamation abuses."

"Many of the plaintiffs are abolitionists in terms of mountaintop mining," added Brian Glasser, lawyer for the state Division of Environmental Protection. "This doesn't settle the problem for them."

During interim meetings at the Capitol Monday, Lovett and Glasser outlined the proposed settlement for the Legislature's Joint Council to Research Surface Mining.

Under the proposed settlement, the DEP agreed to start enforcing rules that require mountaintop removal permits to contain detailed information on how streams will be protected and how reclamation will keep up with active mining.

"Frankly, in our review of the permits, we did not have a good record on that," Glasser told lawmakers.

The proposed settlement also requires DEP to write new regulations to better define the approximate original contour reclamation standard, improve rules on commercial forestry post-mining land uses, and allow companies to give away land under a homesteading post-mining land use.

At the urging of council chairman Sen. Lloyd Jackson, D-Lincoln, lawmakers approved the state chipping in $700,000 to help pay the $3 million to $4 million cost of a federal environmental impact study of mountaintop removal.

Lovett said that his scientific experts tell him the study is still not adequately funded. Because there isn't enough money, stream sampling is not being done frequently enough or at the right time of year, Lovett said.

"If it's not done properly, it's going to lead to further litigation and more permitting hangups," Lovett said.

Glasser and Lovett both praised the proposed lawsuit settlement, which is pending before Chief U.S. Charles H. Haden II.

But at times, the lawyers who brokered the deal offered somewhat different views of it:

Glasser extolled the new homesteading post-mining land use as "a good chance for joint gain." Lovett warned that if DEP doesn't write and enforce homestead rules strictly, "it can just become another cheap post-mining land use."

Glasser said that, by following the new AOC policy, coal operators can satisfy federal regulators that valley fills are small enough. Lovett said that is not the case. "We think the valley fills could still be too big, and will still be too big, to comply with the Clean Water Act," Lovett said.

Glasser depicted the settlement as a near cure-all for mountaintop removal issues.

"There are better ways to do it for everyone," Glasser said. "Permitting will go much smoother, and people will object less to mountaintop removal."

Lovett was much less optimistic.

"DEP hasn't been following the law, and we don't trust them to follow the law in the future," he said. "DEP has been so lax for so long that operators got used to not following the law."

Sen. Sarah Minear, R-Tucker, complained that Haden wanted to retain jurisdiction over the case after the settlement, and that the settlement wouldn't prohibit citizens from going back to court if they aren't happy with the results.

"How long is this door going to remain open?" Minear asked. "Is there a statute of limitations or something? I don't think this is fair."

Lovett urged lawmakers not to think that the lawsuit settlement would end all complaints about mountaintop removal.

"It's not going to make everybody happy about mountaintop removal, and I don't think you should think it will."

Haden is accepting public comments on the proposed settlement through Sept. 30.

Copies of the settlement are available at federal courthouses in Charleston, Parkersburg, Huntington, Bluefield and Beckley. Documents are also available via the Internet at www.fedcourtwvsd.com. Written comments may be sent to Clerk, U.S. District Court, P.O. Box 3924, Charleston, WV 25339.

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


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