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Mining rivals report 'breakthrough'

State regulators, environmentalists and coal operators have made a "breakthrough" in negotiations to settle part of a lawsuit over mountaintop removal mining, lawyers told a federal judge on Thursday.

Lawyers for the state Division of Environmental Protection, the West Virginia Highlands Conservancy and coalfield residents told Chief U.S. District Judge Charles Haden II they need more time to iron out the details.

"Simply put, the time remaining before trial is inadequate to complete complex, multi-party negotiations or complete discovery on the state law issues," lawyers for DEP and the citizen groups said in a two-page motion.

The breakthrough, reached Wednesday, concerns only efforts to design a new definition of the federal "approximate original contour," or AOC, reclamation standard for surface mines, court filings indicate.

Over the last 1 1/2 years, various investigations have found that lax enforcement of the AOC rules has allowed coal operators to flatten mine sites under the guise of restoring them to their approximate original topography.

A tighter definition of AOC would force coal operators to put less rock and earth into stream-bed valley fills and propose more post-mining development for mountaintop removal sites.

In a legal motion, DEP lawyer Brian Glasser and lead plaintiffs lawyer Joe Lovett said negotiations had "reached a breakthrough yesterday on very complex technical issues related to AOC."

"It will, however, require additional time to reduce the general understanding to specific technical regulatory language," they said.

"The parties must also seek approval from regulatory authorities who are not parties to the case before the agreement could be properly finalized and implemented," Glasser and Lovett told Haden.

Glasser and Lovett filed the motion to further encourage Haden to delay the start of trial in the case, now scheduled for July 13.

The lawyers did not indicate that they had reached agreement on any of the other regulatory lapses alleged in a July 1998 lawsuit challenging DEP's mountaintop removal permitting.

But in a conference with Haden on Monday, Lovett told the judge, "We're very close to reaching settlement on most, if not all, of the issues."

The lawsuit alleges that DEP routinely issues mountaintop removal permits that violate rules on AOC, post-mining development, stream buffer zones and water impact studies and reclamation plans.

During Monday's conference, West Virginia Coal Association lawyer Warren Upton told Haden that the parties were "way down the road" toward settling, and that only the buffer zone issue would be left for the judge to decide.

Several weeks ago, the board of the Highlands Conservancy had agreed to continue negotiations with the industry over the buffer zone issue.

Industry officials wanted environmentalists to drop their claims on that issue, in exchange for the industry's creating a new "land trust" through which coal company land would be donated for homesteading and economic development.

However, Arch Coal later vetoed that proposal, according to several sources.

But on Monday, Upton claimed that a move by the U.S. Army Corps of Engineers to withdraw its proposed permit for Arch Coal Inc. to expand its Dal-Tex mountaintop removal mine had "derailed literally hundreds of hours that the parties have devoted to trying to settle this case."

Part of the mountaintop removal case involves environmentalists' arguments that the Corps cannot permit the 3,100-acre Arch expansion under a general "nationwide" permit program.

A week ago, Corps lawyer Steven Rusak convinced his agency clients to withdraw approval of the nationwide permit and force Arch Coal to apply for a more rigorous, individual permit.

Arch Coal and the United Mine Workers, which represents workers at Dal-Tex, have asked Haden to reject the Corps' efforts to withdraw the proposed permit.

About 400 UMW members are expected to be laid off on July 24 because Arch Coal has not submitted a permit that regulators and the courts will approve.

To contact staff writer Ken Ward Jr., call 348-1702 or e-mail kw...@wvgazette.com.


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