The federal government's brief, however, was more hotly anticipated by those watching the mountaintop removal case.
The brief made four major points: - The government supported the rights of residents to file lawsuits in federal court against state agencies that are not properly enforcing the 1977 Surface Mining Control and Reclamation Act. The Underwood administration says the state is immune from such suits.
- Federal lawyers agreed with Haden that the buffer zone rule "prohibits the burial of substantial portions of intermittent and perennial streams" beneath valley fills. Some fills could be allowed in those streams, federal officials said, if mine operators met the test for a buffer zone variance.
But federal officials also said they had withdrawn an August 1999 agreement that made it easier for operators to meet that test. Under the agreement, a buffer zone variance could be granted if an operator received a dredge-and-fill permit from the corps.
On Monday, OSM Director Kay Henry said that the buffer zone test was more stringent than the corps' permit requirements. In a letter to DEP Director Michael Castle, Henry said companies must meet both tests.
- The Justice Department said Haden was wrong to outlaw the permitting of valley fills under corps' permits. Haden had ruled that valley fills are mining "waste," and that waste fills could not be approved by the corps.
In an interview, EPA Deputy Administrator Michael McCabe said his agency and the corps would issue new regulations later this week to allow mining waste fills to be authorized by the corps.
- Federal regulators argued that Haden's ruling was overly broad, because it blocked DEP from issuing permits that allowed "placement of any excess mining spoil into any" perennial or intermittent stream.
"The district court's injunction would prohibit the placement of even de minimis amounts of excess spoil, such as a single rock or handful of dirt, in any intermittent or perennial stream," the government brief said.
"No evidence was presented to the district court that the disposal of small quantities of mining soil, even the disposal of de minimis quantities, invariably causes adverse environmental effects," it said.
The government asked the 4th Circuit to reverse Haden's injunction, remand the case to him, and instruct Haden "to frame an injunction that is more narrowly tailored to the claims that were before the court." To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.