The Times West Virginian

West Virginia

June 25, 2013

Feds asked to investigate mining oversight

Groups claim state DEP has failed to properly regulate surface mining

MORGANTOWN — Eighteen environmental, civic and religious groups said Monday that the West Virginia Department of Environmental Protection has failed to properly regulate surface mining for decades, and it’s time the federal government step in.

The state and national groups — including Earthjustice, the Sierra Club, the League of Women Voters and Catholic Committee of Appalachia — say the DEP has shown “callous disregard” for both the environment and federal law. It also has spent nearly $1 million between November 2010 and November 2012 fighting the U.S. Environmental Protection Agency, the groups say, “to protect the mining industry at the expense of public health and the environment.”

In a 100-page petition, the groups ask the U.S. Office of Surface Mining and Reclamation Enforcement to investigate and temporarily take over the regulatory program the state has run since 1981. The groups cite chronic failures at virtually every level of oversight, from permitting and inspection to insufficient water-quality and fines that are too small to deter violations.

DEP spokeswoman Kathy Cosco said the agency had not yet reviewed the petition, but that West Virginia has been a leader in mining regulation.

“Many aspects of the federal regulatory program originated from regulations that already existed in West Virginia’s program,” she said in a statement shortly after the petition was delivered Monday morning.

They include restoring mined lands to their approximate original contour, flood prevention, reforestation of mined lands and a protocol to protect the endangered Indiana bat from mining’s effects, Cosco said.

OSM spokesman Chris Holmes said the agency had not yet studied the petition, “but we assure everyone that we will examine all of their concerns and handle them in a manner appropriate to the Surface Mining Act.”

“OSM appreciates and takes seriously the concerns of all citizens living and working in coalfield communities,” Holmes said in an emailed statement. “We have discovered that often, the most qualified people to report on a potential problem are the ones who are closest to them, and that is the basis of our system of handling citizen complaints.”

The groups announced the petition at a news conference in Charleston as part of a new campaign called CARE, or Citizen Action for Real Enforcement.

The petition says that while DEP has cited at least 6,300 violations of the federal Surface Mining Control and Reclamation Act, or SMCRA, since 2006, “many more violations have been ignored and unenforced.”

“These failures can no longer be tolerated,” the petition says, noting that huge swaths of southern West Virginia have been permanently scarred and tens of thousands of additional acres are at risk.

“The situation could not be more dire,” they say, “nor the stakes higher.”

Federal law allows coal-producing states to regulate surface mining operations within their borders, and West Virginia is one of 24 that has such “primacy,” or primary responsibility. OSM is the regulatory agency in Tennessee and Washington state.

When the federal law was passed in 1977, Congress said regulation rightly rested with the states because of their diverse terrain, climate and other physical conditions. But it does give the federal government the power to intervene if states aren’t following their own approved regulatory plans or if they aren’t complying with the federal law.

Under Section 733, OSM can temporarily take over some or all of a state’s program and bring that state into compliance, but doing so is rare.

OSM says it has used that section of the law 11 times in a total of nine states, including: Oklahoma in 1981, 1983 and 1993; Kansas in 1983; Montana in 1993; Utah in 1995; West Virginia in 2001; Missouri in 2003; Ohio in 2005; and Kentucky in 2012.

Six cases were resolved without a federal takeover of any part of the state programs, the agency said, and partial takeovers occurred in the 1984 Oklahoma case, in Missouri and in Tennessee.

The agency warned Kentucky last year that its bonding requirements for mine-reclamation work were insufficient, and the state has since taken steps toward complying. Ohio is also working toward resolving some issues. Tennessee, meanwhile, relinquished its regulatory authority in 1984.

Nearly half a million acres in West Virginia were under mining permits in December 2012, but the petition says DEP regularly issues or renews mining permits even when operators have uncorrected violations. A DEP attorney acknowledged the practice in a 2009 hearing before the Surface Mine Board, the petition says, saying that strict adherence would effectively shut down the industry.

The petition calls that disregard for the law both shocking and untrue.

“WVDEP’s argument demonstrates that it considers its role in implementing SMCRA to be clearing an easy path for mining,” the petition says, “even when companies fail to comply with the terms of their permits.”

It also says DEP routinely allows companies to act on expired permits, which are supposed to be terminated if mining doesn’t begin within three years.

The petition also points to a problem OSM has previously acknowledged — chronic understaffing at DEP, especially in permitting and inspection. With dozens of vacancies, remaining staff members are left with “unreasonable workloads,” including responsibility for far more acreage than their counterparts in other states.

West Virginia also fails to conduct monthly unannounced inspections of mine sites required by law, meaning “real harm on the ground” is going unchecked, the petition says. Inspectors have failed to make the number of required inspections for seven years in a row, the groups say, and the DEP isn’t sufficiently inspecting coal slurry dams either.

The complaints accuses DEP of failing to: levy fines that are large enough to deter future violations; set appropriate water-quality standards, including appropriate limits on selenium and electrical conductivity; enforce federal standards for reclaiming former mine sites; and use proper modeling in developing stormwater runoff agreements for mine operators.

The petition blames mining runoff for eight major flood events in southern West Virginia between 2001 and 2009.

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