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Judge delays mine permit a second time

A federal judge on Wednesday extended a temporary restraining order against the largest mountaintop removal mining permit in West Virginia history.

Chief U.S. District Judge Charles Haden extended his initial order, issued on Feb. 3, for an additional 10 days.

The new order blocks permits for Arch Coal Inc.'s Spruce No. 1 Mine in Logan County through Feb. 23.

Haden said he would need the additional time to hear testimony in the case before deciding whether to issue a preliminary injunction that would halt the mine for a longer period of time.

"I think it's going to be absolutely necessary that we do so, because we haven't completed the testimony," Haden told the 15 lawyers arguing for various parties in the case.

Arch Coal subsidiary Hobet Mining Inc. wants to strip a 5-square-mile area along Pigeonroost Branch near Blair.

Haden has been asked by the West Virginia Highlands Conservancy and a group of coalfield residents to halt the mine, or at least force more environmental study before it is approved. Federal regulators exempted the Pigeonroost mine from a new policy requiring more scrutiny of mountaintop removal permit applications.

After three hours of testimony Wednesday morning, environmental group lawyers rested their case. Pigeonroost Branch residents, an environmental activist, state permit reviewers, a mining engineer and a biologist were questioned in four partial days of testimony by the plaintiffs.

Lawyers for the Division of Environmental Protection, the U.S. Army Corps of Engineers and various mining companies and industry trade groups will begin their side of the case next week - either Wednesday or Thursday - depending on Haden's court schedule.

Haden said he would set aside time the following week as well. A visit to the mine site, tour of an active mine, and a flyover of mountaintop removal sites will be scheduled after all the testimony is heard, the judge said.

During Wednesday's hearing, Hobet Mining lawyer Roger Wolfe opposed extension of the temporary restraining order, arguing that environmental group lawyers had already taken too long presenting their case.

Steven Rusak, a lawyer for the Corps of Engineers, also objected to the extension. Russ Hunter, a lawyer for the state Division of Environmental Protection, said DEP would not oppose an extension.

At the request of Warren Upton, a lawyer for coal industry trade groups, Haden clarified that the temporary restraining order applies only to the Hobet permit, not to other coal companies.

Earlier Wednesday, DEP assistant mining chief Lewis Halstead testified that changes in elevation from lopping off mountaintops should be considered in deciding whether mountaintop removal mines comply with the federal approximate original contour, or AOC, standards.

"Elevation would probably be part of it - would be a consideration - but not solely and maybe not even primarily," Halstead said.

Halstead said that if former DEP Director David C. Callaghan had not done away with the state's 50-foot elevation change rule, mountaintop removal mines would have to receive AOC variances and propose post-mining development.

 

To contact staff writer Ken Ward Jr., call 348-1702.

 


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