Bragg v. Robertson
| Decision Date | 20 October 1999 |
| Docket Number | No. Civ.A. 2:98-0636.,Civ.A. 2:98-0636. |
| Citation | 72 F.Supp.2d 642 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | Patricia BRAGG, et al., Plaintiffs, v. Colonel Dana ROBERTSON, et al., Defendants. |
Joseph M. Lovett, Mountain State Justice, Charleston, WV, James M. Hecker, Trial Lawyers for Public Justice, Washington, DC, for Patricia Bragg, James W. Weekley, Sibby R. Weekley, plaintiffs.
Patrick C. McGinley, Morgantown, WV, James M. Hecker, Trial Lawyers For Public Justice, Washington, DC, Suzanne M. Weise, Morgantown, WV, for The West Virginia Highlands Conservancy, Harry M. Hatfield, Carlos Gore, Linda Gore, Cheryl Price, Jerry Methena, plaintiffs.
Michael L. Keller, Assistant U.S. Attorney, Charleston, WV, Rebecca A. Betts, United States Attorney, Charleston, WV, Lois J. Schiffer, Asst. Atty. Gen., Steven E. Rusak, U.S. Department of Justice, Environment & Natural Resources Div., Environmental Defense Section, Washington, DC, Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources Div., General Litigation Section, Washington, DC, Terry Clarke, U.S. Army Corps of Engineers, Office of Counsel, Huntington, WV, for Dana Robertson, Colonel, District Engineer, U.S. Army Corps of Engineers, Huntington District, defendant.
Michael L. Keller, Assistant U.S. Attorney, Charleston, WV, Rebecca A. Betts, United States Attorney, Charleston, WV, Lois J. Schiffer, Asst. Atty. Gen., Steven E. Rusak, U.S. Department of Justice, Environment & Natural Resources Div., Environmental Defense Section, Washington, DC, Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources Div., General Litigation Section, Washington, DC, for Joe N. Ballard, Lieutenant General, Chief of Engineers and Commander of the U.S. Army Corps of
Engineers, Michael D. Gheen, Chief of the Regulatory Branch, Operations and Readiness Div., U.S. Army Corps of Engineers, Huntington District, defendants.
Thomas L. Clarke, William E. Adams, Jr., Craig B. Giffin, West Virginia Division of Environmental Protection, Office of Legal Services, Charleston, WV, Russell M. Hunter, West Virginia Division of Environmental Protection, Office of Mining & Reclamation, Nitro, WV, Benjamin L. Bailey, Brian A. Glasser, Bailey & Glasser LLP, Charleston, WV, for Michael Miano, Director, West Virginia Division of Environmental Protection, defendant.
Roger A. Wolfe, Robert G. McLusky, James R. Snyder, Jackson & Kelly, Charleston, WV, for Hobet Mining, Inc., Catenary Coal Co., Mingo-Logan Coal Co., intervenor-defendants.
W. Warren Upton, M. Shane Harvey, Jackson & Kelly, Charleston, WV, Terry R. Sammons, Jackson & Kelly, Charleston, WV, for The West Virginia Mining and Reclamation Association, West Virginia Coal Association, intervenor-defendants.
W. Henry Lawrence, IV, Robert D. Pollitt, Richard L. Lewis, Richard N. Farmer, Steptoe & Johnson, Charleston, WV, for Western Pocahontas Properties Limited Partnership, National Council of Coal Lessors, Inc., intervenor-defendants.
Grant Crandall, James M. Haviland, George P. Surmaitis, Crandall, Pyles, Haviland & Turner, Charleston, WV, for International Union, United Mine Workers of America, intervenor-defendant.
Pending are cross-motions for summary judgment on Counts 2 and 3 of the Second Amended Complaint.1 For reasons discussed more fully below, the Court GRANTS Plaintiffs' motion and DENIES Defendants' motion.
These motions address a relatively small, but critical portion of an extended civil action concerning the form of surface coal mining commonly known as "mountaintop removal" mining.
Following extensive hearings on a proposed surface mining permit for the Hobet Spruce Fork mine, which the Court considered as an instance of the Plaintiffs' pattern and practice claims, the Court enjoined the federal Defendants2 from issuing any further permits for that mine, stayed permits issued by the DEP Director, and enjoined the Arch subsidiaries from preconstruction or mining activities for the Spruce Fork operation until the case was resolved on the merits. Bragg v. Robertson, 54 F.Supp.2d 635 (S.D.W.Va. 1999). By Order of June 17, 1999 the Court accepted a settlement agreement which resolved Counts 11, 12, and 13 of the Amended Complaint concerning the Federal Defendants, although the Court retained jurisdiction to interpret and enforce the agreement until fully performed. Bragg v. Robertson, 54 F.Supp.2d 653 (S.D.W.Va.1999).
On July 26, 1999 a proposed consent decree, which purports to resolve all remaining issues with the exception of Counts 2 and 3, was presented to the Court. The consent decree was signed by Plaintiffs' counsel and Michael Miano, then Director of the DEP,3 but the Director represented to the Court that West Virginia Code Section 5-3-2a requires public notice and comment before the agency may ask the Court to enter the decree. Additionally, the Court established its own period for public comment on the consent decree to end September 30, 1999. Accordingly, the motion to enter the consent decree remains pending.
All parties concede they cannot reach a settlement on the remaining counts, Counts 2 and 3, and that these counts are appropriate for summary judgment. The parties' opposing motions are now ripe for disposition.
The coalfields of southern West Virginia are mountainous, with steep wooded slopes. Coal in these mountains is found in seams of varying thickness sandwiched between layers of rock and dirt. In mountaintop removal mining,4 the rock and dirt overburden or "spoil" is removed, layer by layer, and the coal is mined at the exposed surface, as it appears. The ultimate effect is to remove the mountaintop to a depth where deep mining is the practical method of recovery.
The Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), Pub.L. 95-87 (1977) (codified at 30 U.S.C. §§ 1201-1328), provides general performance standards, which require coal mining operations "as [sic] a minimum" to "restore the approximate original contour of the land."5 30 U.S.C. § 1265(b)(3). Where the volume of overburden is large relative to the amount of coal removed, and where that volume is increased due to the "swell factor" associated with earth removal, not all the earth and rock removed during mining is needed to restore AOC. The unneeded overburden is called "excess spoil."
Valley fills are composed of excess spoil, that is coal mine waste material,6 which is disposed of by placing it in a valley. The topography of the coalfields and gravity dictate that valleys contain streams, so that valley fills also are generally placed in streams and streambeds.
Counts 2 and 3 are superficially simple. Both involve the so-called "buffer zone rule," a SMCRA rule which provides:
No land within one hundred feet (100') of an intermittent or perennial stream shall be disturbed by surface mining operations including roads unless specifically authorized by the Director. The Director will authorize such operations only upon finding that surface mining activities will 1) not adversely affect the normal flow or 2) gradient of the stream, 3) adversely affect fish migration or 4) related environmental values, 5) materially damage the water quantity or 6) quality of the stream and 7) will not cause or contribute to violations of applicable State or Federal water quality standards. W.Va.Code St.R. ("C.S.R.") title 38 § 2-5.2 (numerals added); see also 30 C.F.R. § 816.57.
Count 2 of the Second Amended Complaint alleges the Director engaged in a pattern and practice of approving buffer zone variances based on permit applications that did not include findings required before such variances may be approved. Count 3 alleges the Director's authority under this rule does not (or cannot) extend to permitting activities, in particular, valley fills, that bury substantial portions of intermittent and perennial streams.
The facts essential to resolution of these summary judgment motions are undisputed. The Director and his agents consistently admit that he made none of the required findings, one through six, for buffer zone variances when authorizing valley fills.7 At the preliminary injunction hearing, permit reviewers testified, for example:
If the company has shown that the fill is necessary during the review of the application with the spoil balance and stuff and they show that the fill will be stable, then ... in the area of the fill, we do not require them to make those [buffer zone variance] findings.
(Tr. of Prelim.Inj. Hr'g ("PI") at 133 (); accord, id. at 584 ().)
Surface mine permit applications support the agency testimony that the required findings were not made. A typical application relates:
The normal flow and gradient of the stream will be adversely affected in the areas of the proposed durable rock [valley] fills and the required sediment control for each. Surface mining activities as proposed in this application make disturbance in these areas necessary.
...
Fish migration and related environmental values will be adversely affected in the areas of the proposed durable rock [valley] fills and the required sediment control for each. Surface mining activities as proposed in this application make disturbance in these areas necessary.
(Surface Mine Permit Application S-5021-97; Pls.' Mem. in Supp.Pls.' Mot.Summ.J. ( ), Ex. 2). Based on applicant assertions that contend the buffer zone requirements could not be met, buffer zone variances, without required findings, were granted for numerous valley fills.
Further, Defendants have never denied that the stream segments buried under a valley fill no longer...
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