Mine ruling expected 'within days'
Arch Coal Inc. lawyer Roger Wolfe warned a federal judge Friday that a ruling against the largest mountaintop removal mine in West Virginia history "will be a mortal blow to the coal industry."
Wolfe and lawyers for government agencies debated the issue with lawyers for the West Virginia Highlands Conservancy on Friday in closing arguments before Chief U.S. District Judge Charles Haden II.
Haden said he would rule "within a few days" on whether to further delay permits for the 3,100-acre mine, proposed by Arch Coal subsidiary Hobet Mining, with a preliminary injunction.
After a 11/2-hour hearing, Haden emphasized that his ruling on the preliminary injunction for one mining permit won't resolve a larger case over problems with mountaintop removal permitting.
"There is a lot more to resolve," the judge said.
Mountaintop removal mining blasts off hilltops. Earth-moving machines dig out valuable, low-sulfur coal reserves. Leftover rock and earth is dumped into valleys and streams.
On Friday, environmental lawyer Joe Lovett asked Haden to force state and federal agencies to require mountaintop removal to comply with stream buffer zone rules and approximate original contour reclamation requirements.
"Hobet, the [Division of Environmental Protection], and the Corps of Engineers should not be allowed to twist the law to suit the industry's move to bigger machines," Lovett said.
Wolfe, lead lawyer for Hobet Mining, listed possible economic damages to the company from permit delays: an idle $70 million investment, 500 jobs, $20 million in lost revenue and $1.6 million in lost tax revenue.
"Layoffs will begin soon" if the permit is delayed longer, Wolfe said. "The impact to Arch is obvious and catastrophic.
"Love it or hate it, coal is West Virginia in many ways," Wolfe told the judge. "Wipe it out and you better be able to deal with the consequences."
Wolfe argued that the permit in question is no different than other mountaintop removal permits approved by regulators in the past.
"I think it's conceded by all that the extent and magnitude of this particular permit application is significant," Haden said. "It would be the largest in state history.
"From the standpoint of scale, I think we're talking about many square miles, of a rather complete change in water, topography and wildlife," Haden said. "We're not talking about losing a particular tree."
Hobet Mining wants to conduct mountaintop removal mining on a 5-square-mile permit proposed for Pigeonroost Branch near Blair, Logan County.
Since Feb. 3, Haden has blocked the state Division of Environmental Protection and the U.S. Army Corps of Engineers from permitting the operation. The judge has twice extended temporary restraining orders against the mine.
Haden must now decide whether to issue a preliminary injunction, which could block the mine's permits until a trial of the full case in September.
The judge has held an estimated 35 hours of courtroom hearings and spent a day touring mountaintop removal sites on the ground. On Friday, Haden spent the morning flying over mountaintop removal mines in Southern West Virginia to understand the scope of the mining.
In recent years, mountaintop removal has become more prevalent. Mines have gotten bigger, with mountaintop removal accounting for two-thirds of the 18,000 acres of West Virginia permitting for strip mining in 1997.
Last July, the Highlands Conservancy and a group of coalfield residents filed a lawsuit to try to rein in mountaintop removal.
As a result, federal agencies agreed to conduct a two-year environmental impact statement aimed at coming up with new regulations on mountaintop removal. In the meantime, the agencies said most mountaintop removal proposals would have to receive a more thorough "individual permit" from the corps, rather than being approved through less stringent "nationwide permits" meant for activities that cause minimal environmental damage.
The U.S. Environmental Protection Agency exempted the Pigeonroost permit from those individual permit requirements, meaning it won't get additional scrutiny.
Jim Hecker, a lawyer for environmental groups, urged Haden to reverse that decision and force regulators to undertake a more rigorous individual permit for the operation.
Steven Rusak, a lawyer for federal agencies, argued that there was no reason for Haden to do so because "there is a rational basis for the corps" decision to grant Hobet authorization under a nationwide permit.
Wolfe said: "Mountaintop mining is legal, [and] valley fills are necessary to virtually any kind of mining in this state."
Lovett told Haden that a further delay in the Pigeonroost permit won't kill Hobet Mining and that complying with federal mining laws won't eliminate mountaintop removal.
"Enforcement of the buffer zones will not prohibit all valley fills and mountaintop removal mines," Lovett said. "It will, however, reduce the size of some fills.
"The coal is not going to go away," Lovett said. "Hobet will be able to mine it when it submits a permit application that is complete and that complies with the law."