August 30, 2004

Surface mining dispute back where it started 

BRYSON HODEL Associated Press Writer

CHARLESTON, W.Va. (AP) -- Six years after it began, a dispute over how the Department of Environmental Protection should interpret a rule that environmentalists believe bars mining activity within 100 feet of a stream is back where it started, in an appeal before the state Surface Mine Board.

The so-called "buffer zone'' rule was the key issue in a lawsuit first filed in 1998 by several coalfield residents and the West Virginia Highlands Conservancy against the DEP in a bid to outlaw the surface mining practice known as mountaintop removal.

Although a federal judge in West Virginia ruled in favor of the residents, the 4th U.S. Circuit Court of Appeals concluded the case should have been filed in state court, not federal.

As a result, the Highlands Conservancy is again challenging the rule as it has been applied in a permit for a 851-acre mine proposed by Arch Coal Inc. in Logan and Mingo counties. The mining plan calls for construction of seven valley fills that would bury an estimated 16,153 feet of stream with mining waste.

The dispute concerns how to interpret a rule that states: "No land within 100 feet of a perennial ... or intermittent stream shall be disturbed by surface mining operations.''

In a final series of briefs filed last week with the board, lawyers for the DEP argued if the rule is interpreted too literally, it would have the effect of banning mountaintop removal mining because there would be no where to dispose of the leftover rock and dirt.

"The WVHC's reading of the buffer zone rule would put an end to any significant level of coal mining activity in the state if it became law,'' said Tom Clarke, senior counsel for DEP.

Mountaintop removal is a high-efficiency mining technique favored by coal companies because it allows them to recover 100 percent of the coal. They blast the rock and dirt from above and between the coal seams, then dispose of it in nearby valleys, often burying streams in the process.

According to Clarke, a study by the U.S. Geologic Survey concluded that in southern West Virginia, the point at which a stream becomes intermittent generally would leave a watershed of only 14.5 acres available for filling.

A joint study of 11 mining sites by the U.S. Office of Surface Mining, the industry and the conservancy's expert witness concluded that prohibiting fill in intermittent or perennial streams "would cause over 92 percent of the coal proposed to be mined by those mines to be unmineable,'' Clarke said.

"This case is about the proper application of the buffer zone rule, in accordance with state and federal law,'' Clarke wrote. "It is not about the propriety of mountaintop removal... This question is for Congress and the Legislature to address.''

But a lawyer for the Highlands Conservancy said the rule means just what it says, and surface mining permits must comply with both surface mining law and the Clean Water Act.

"This is not as complicated as the other parties pretend,'' wrote Bren J. Pomponio of Mountain State Justice. "The rule is clear on its face.''

According to Pomponio, the environmentalists' argument is supported by the fact that state and federal regulatory agencies are moving to change the buffer zone rule.

"There would be no need to change the current rule to accommodate the industry's practice if the current rule did not prohibit fills...,'' he wrote.

The federal surface mine law establishes "a floor,'' he said, but "does not prohibit the (regulatory agencies) from adopting more stringent requirements than are in the Clean Water Act. If it did, all the water protection provisions of (Surface Mine Control and Reclamation Act) would be superfluous.''

Pomponio also cited an April 2000 letter from the director of the federal Office of Surface Mining to the DEP providing guidance on meeting the standards.

"The (Clean Water Act) guidelines do not in fact establish standards that are equivalent to those found in OSM's stream buffer zone rule. Permit applications must meet the requirements of both rules, and compliance with the (Clean Water Act) guidelines will not necessarily satisfy the requirements of the stream buffer zone rule.''

A lawyer for Arch Coal and Coal-Mac Inc. said the buffer zone rule has not historically been applied to coal mine valley fills, but instead was meant to "establish a 'filter strip' between upland activities and streams to control non-point-source contributions of sediment,'' Robert McLusky wrote.

The fact that the conservancy cites briefs filed by the federal government in the original 1999 lawsuit, known as Bragg v. Robertson to support its position is meaningless, McLusky said.

"The briefs filed by political appointees in the Clinton/Gore administration on behalf of the United States in Bragg were no more than a convenient last-minute political position to which no deference was ever owed,'' McLusky wrote.