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Suit will challenge mountaintop removal mining

State strip mine regulators are allowing coal operators to illegally shave off the tops of mountains and fill in streams, a group of environmentalists and coalfield residents allege.

The West Virginia Highlands Conservancy and 10 citizens have filed a formal notice of intent to sue the state Division of Environmental Protection over the agency's enforcement of mining laws.

Their suit will try to rein in the strip mining practice, known as mountaintop removal, in which whole tops of mountains are taken off to uncover coal reserves.

Lawyers for the Conservancy and the citizens sent a notice of intent to sue letter to DEP Director John E. Caffrey late last week.

Under federal environmental law, citizens cannot sue regulatory agencies before filing such a notice. A notice of intent to sue gives regulators 60 days to start to fix any problems and avoid a lawsuit.

"By routinely approving surface mining operations which decapitate the state's mountains and which dump the resulting 'waste' into the streams, the director has abdicated his responsibilities," the letter stated.

"Of particular concern...is the loss and degradation of West Virginia's waters associated with surface mining activities, including mountaintop removal, steep slope surface mining and other multiple seam surface mining activities," it stated.

The letter also states, "The environmental and social impacts resulting from multiple seam surface mining extend well beyond the streams that are actually filled in.

"The quantity and quality of streams in the vicinity of these operations are often adversely affected and significant portions of the state's forests, mountains and streams are destroyed," it said.

"The communities located below these massive mining operations can be devastated. The people are often effectively forced from their homes by blasting, dust, noise, flyrock, the threat of flooding, fear that the valley fills above their homes are unstable, and the degradation of stream, spring and well water."

Among the specific allegations in the letter:

 Strip mine waste piles called valley fills are illegal, because the U.S. Army Corps of Engineers is not allowed to issue "dredge and fill" permits under the Clean Water Act for dumping waste materials in streams.

Under federal law, the Corps can only issue those permits for fill material, which is defined as "material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a waterbody."

 Valley fills violate federal rules that prohibit strip mining within 100 feet of a stream. This "buffer zone" requirement may only be waived after regulators make a series of specific findings that allowing the mining will not violate state or federal water pollution limits.

"The director, however, routinely grants permits that propose to fill intermittent and perennial streams with mining waste without making the required findings in regard to the waters to be filled," the letter states. "One egregious harm stemming from the director's failure to make the findings is the filling and destruction of hundreds of miles of the state's streams with mining waste."

 The DEP has established a pattern and practice of issuing strip mine permits without requiring companies to thoroughly study the impacts of their mines on water quality, and without requiring complete plans for how companies will minimize those impacts.

In addition to the Highlands Conservancy, the citizens filing the notice of intent to sue were James W. and Sibby R. Weekly, Carlos and Linda Gore, and Tommy and Victoria Moore, all of Blair; Patricia Bragg of Delbarton; Harry M. Hatfield of Madison; and Cheryl Price and Jerry Methena of Uneeda.

The Conservancy and the residents are represented by Joseph M. Lovett, a Charleston lawyer with the nonprofit firm Mountain State Justice Inc.; Patrick C. McGinley, a West Virginia University law professor; Suzanne M. Weise, a Morgantown lawyer; and James Hecker of the Washington group Trial Lawyers for Public Justice.

John Ailes, chief of the DEP Office of Mining and Reclamation, said Friday that he had not seen the notice of intent to sue yet and could not comment on it.

In previous interviews, Ailes has defended his office and its handling of permits for mountaintop removal strip mines.

"This is still the best program in the country," Ailes said last month. "It always has been and it always will be."

Roger Calhoun, director of the Charleston field office of the U.S. Office of Surface Mining, said last week there are some things the state could do better. But, Calhoun downplayed the issue of mountaintop removal mines and their environmental impacts.

"This is not the biggest environmental issue in the state," Calhoun said. "I have other things to do."


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