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DEP hopes new mining policy heads off EPA crackdown

Read the DEP policy here.

CHARLESTON, W.Va. -- West Virginia regulators on Thursday issued new water-quality guidelines they and the coal industry hope head off the Obama administration's efforts to crack down on mountaintop-removal mining.

The state Department of Environmental Protection issued a new permit policy and a "justification" document that essentially reject tougher U.S. Environmental Protection Agency requirements.

Under the new policy, the DEP would require more detailed toxicity testing downstream from mining operations and for the first time force mine operators to show that proposed mines would not have a "reasonable potential" to cause "significant adverse impacts" on aquatic ecosystems.

The state's policy, though, would largely base such decisions on methods that EPA scientists believe are not the most sophisticated available and without using a firm limit on electrical conductivity as a measure of stream health.

DEP Secretary Randy Huffman urged EPA officials to defer to the new West Virginia guidance over more detailed federal agency reviews of Clean Water Act permit applications for valley fills and mining pollution discharges.

Huffman said he's not "trying to pick a fight" with the EPA, but added that if federal officials don't find his new policy acceptable, "I guess we'll have to see what happens."

The National Mining Association has already sued the EPA over the agency's mountaintop-removal policies, and Huffman's agency has hired outside lawyers in anticipation of perhaps filing a similar case.

Bill Raney, president of the West Virginia Coal Association, said his group is still reviewing the new DEP guidance but hopes "it will get [the] EPA out of the state's face, as far as trying to dictate the water-quality standards."

Margaret Janes, senior policy analyst for the Appalachian Center for the Economy and the Environment, said the new DEP guidance "is not well founded."

"It's essentially [the] DEP acting as a friend of the coal industry, instead of a regulator," Janes said. "This is a continuation of business as usual."

In mountaintop removal, coal operators use explosives to blast off entire hilltops and uncover valuable low-sulfur coal reserves. Leftover rock and dirt is shoved into nearby valleys, burying streams.

Industry officials consider the method to be highly efficient and the only way to reach some thin seams of Appalachian coal. Critics point to the fewer number of workers mountaintop removal needs, and to a growing body of science that shows forests, water and community health are threatened by mining practices.

Since taking office in January 2009, the Obama administration has initiated tougher permit reviews and forced mine operators to reduce the size and number of valley fills authorized under Clean Water Act "dredge and fill" permits. Administration officials have said their goal is to reduce mining impacts, but not to ban surface mining.

EPA officials have said they stepped into the permitting process because federal law requires them to do so if state regulatory agencies like the DEP and other federal bodies, such as the U.S. Army Corps of Engineers, are not properly protecting water quality.

In perhaps its most significant move, the EPA announced new electrical conductivity guidance in April intended to force coal operators to rework mining plans to reduce discharges of chlorides, sulfides and dissolved solids that can harm aquatic life.

EPA Administrator Lisa P. Jackson had said "no or very few valley fills" likely would be approved under the policy, but last month drew criticism from environmental groups when the policy allowed a new mine in Logan County to move forward.

In its guidance, the DEP complained that the EPA conductivity policy was using "an overbroad, generic criterion . . . to set unattainable limits."

The DEP also said state officials want to define "significant adverse impact," not as "a change in the numbers or makeup of the benthic macroinvertebrate community in a segment of a water body downstream from a point source discharge," but instead as a "material decline in the overall health of an aquatic ecosystem."

Still, the DEP guidance bases permitting decisions in large part on the state's preferred scoring system for stream health, rather than a more sophisticated method the EPA says helps prevent pollution-tolerant aquatic life from masking overall impacts.

In a news release, the DEP said its guidance "will result in changes that are markedly different from how mining has been conducted for the last 30 years."

Huffman said in an interview that he doesn't know if the DEP guidance will reduce mining's environmental impacts or if it will be more or less restrictive than what the EPA has proposed.

"[The] EPA's document plays it safe, and gets to a place where impacts are minimal or zero," Huffman said, "and while I don't necessarily believe that's the best way for a developed society to operate, I don't know that our approach will be any less restrictive.

"No loss is best, but some loss has to be expected for this or any other activity to occur."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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