The partial settlement of the mountaintop removal litigation (see accompanying story) makes significant changes in the way mountaintop removal strip mining is done. If the settlement is carried out, it will result in strip mining that is less damaging to West Virginia and West Virginians than it would have been without the settlement.

To some, of course, this provides about as much comfort as knowing that your legs will be cut off by a skilled surgeon and that you will be fitted with a state of the art prosthesis. This may be better than having a butcher hack away with an ax but your legs are still gone.

The unresolved issue in the mountaintop removal litigation would more directly address the major controversy in this type of mining: whether it is legal under the federal and state surface mining acts to fill streams with dirt and rock.

Both federal and state law prohibit any mining withing one hundred feet of intermittent or perennial streams. This one hundred foot area is what is known as the "buffer zone."

Like many requirements of the law, the Division of Environmental Protection (DEP) may allow mining within this buffer zone if certain conditions are met. The mining must not interfere with stream flows; water quality standards must be met, and environmental values must be protected.

It has been DEP policy to routinely allow mining within buffer zones, including filling the streams.

The West Virginia Highlands Conservancy and the other plaintiffs contend that it is physically impossible to fill streams and still maintain stream flows, meet water quality standards, etc. While it may be possible to get closer than one hundred feet from a stream and still meet these requirements, it is not possible to actually fill the streams and still meet these requirements.

The DEP contends that the buffer zone requirement does not apply to valley fills.

There is no settlement of this issue; the parties are at impasse. There is no solution other than let the judge decide.

If the judge agrees with the plaintiff’s interpretation of the law, the result will be that there will be no more valley fills except in the very upper reaches of the valleys where there are no perennial or intermittent streams. It would not eliminate mountaintop removal mining entirely but would very dramatically reduce the size of the valley fills. The effect of this would be to reduce the size of the operations. With only the very head of the valleys to use for a fill, companies would be forced to reduce the size of the operations. They could not cut the top from a mountain if there is no place to put the overburden.

It will not be necessary to have a trial in order for judge to decide this issue. Everyone agrees that if the buffer zone rule applies to valley fills then there could be no more valley fills in perennial or intermittent streams. It is only a question of whether the law applies to valley fills. The judge will decide that question on the basis of written arguments submitted by all parties.