Mountaintop mining,
choreographed chaos

BY ART SANDA I
ASSOCIATE PUBLISHER I EDITOR
Coal Age Magazine December 1999

     Putting the West Virginia mountaintop mining situation in perspective is akin to getting a firm hold on Jell-O. The situation is so fluid, it changes hourly, and those close to developments are hesitant at best to pro­ject an outcome.

     Central to the issue is the Oct. 10th ruling by Chief U.S. District Judge Charles H. Haden II prohibiting the West Virginia Division of Environmental Protection to issue mining permits that use valley fill waste disposal. In his ruling, Haden said valley fill operations violate the federal 100-foot buffer rule requirement.

     In effect, the ruling prohibits dumping waste into any perennial or inter­mittent stream in West Virginia. Having classified rock and dirt as waste, the ramifications of the ruling go well beyond the initial target of moun­taintop mining and extend to virtually all coal mining in the Mountain State; with the potential for being extended to all states and all mining.

     The ruling puts at odds rules and regulations of federal agencies and the intent of Congress under the Surface Mining and Reclamation Act and the Clean Water Act, as well as differences in interpretation of the two laws themselves, as cited by the judge in his ruling. Recognizing the unique topog­raphy of West Virginia, Congress made specific exception to its ban on allow­ing waste to enter U.S. streams for surface mining in West Virginia.

     Immediately upon the ruling, West Virginia Governor Cecil Underwood ordered a halt to the filling of perennial and intermittent streams under all existing permits on the basis that the judge’s ruling prohibited both the development of new valley fills and increasing the size of existing val­ley fills. West Virginia Director of the Division of Environmental Protection Michael Castle issued regulations to that effect.

     At the same time, the governor called for legislative action by the West Virginia Congressional Delegation, as did the West Virginia Legislature and the United Mine Workers of America, publicly, in writing, in print, and in private. Under the leadership of Senator Robert Byrd, the delegation called on and initially received from President Clinton his support for a rider that would clarify the intent of Congress in this situation and make moot the judge’s ruling.

     Haden himself, in his ruling, said that, “if application of the buffer zone rule, a regulation under federal law, prevents surface area coal min­ing or substantially limits its application to mountaintop removal in the Appalachian coalfields, it is up to Congress and the Legislature, but not this court, to alter that result.”

     The same judge had earlier set aside a memorandum of understanding (MoU) reached by the three federal agencies and one state agency involved—the EPA, the Corps of Engineers, Fish and Wildlife, and West Virginia Division of Environmental Protection. Ironically, it was this MoU that, at least in part, was the basis for the rider the West Virginia Congressional Delegation attached to one of the government's bud­get bills.

     Clinton’s support of the Byrd-led initiative was short lived. On Oct. 30, Haden stayed his ruling pending its appeal, and Clinton immediately with­drew his support, stating in a prepared statement:  “In light of a stay issued yesterday by the U.S. District Court in West Virginia, the Administration has determined that there is no need to consider legislation to address the possible impact of the court’s decision on mining regulations.”

     However, the appeal, even if accelerated, is not expected to be heard for at least six months. While some hailed the stay as providing a cooling off period, others saw it as a prolonging of the agony to the industry. As one insider noted: "What company president is going to go to a lending institu­tion and ask for $15 million with a 10-year payback with which to put in a surface operation when, if asked how long he would be in business if the appeal upholds the judge’s ruling, he has to tell them one year? And what company, sitting on millions of tons of reserves in the West, is going to invest money in an iffy situation in West Virginia? None, that’s who.”

     The ramifications to the industry, of course, extend beyond this state’s borders. As Mike Musulin, president of the Kentucky Coal Association is quoted in the editorial on page 5, the ruling gives them three days of prosperity before it is turned against the industry in his state. And indus­try executives see this being extended throughout Appalachia, and beyond, until all of coal mining, all of mining, is affected.

     The outcome of the legislative action by the West Virginian Congressional Delegation is unknown at this writing, though it is known by its reading. According to the industry experts, as well as the West Virginia Speaker of the House, Bob Kiss, the resolution of the problem lies in Congress, and not the courts, regardless of the outcome of the appeal of Haden’s ruling should the issue not be resolved in this session of congress. They also express concern that independent legislation, should the rider initiative fail, will be a long, painful process.