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DEP delays Massey permit

State regulators have put the brakes on a new A.T. Massey strip mine while they review complaints about the permitting of mountaintop-removal mining.

The permit, for Massey subsidiary Independence Coal Co., was expected to be issued late last week by the state Division of Environmental Protection.

DEP officials delayed it to review questions raised by an environmental group's pending lawsuit and by a Charleston Gazette investigation.

John Ailes, chief of the DEP Office of Mining and Reclamation, backed off from issuing the permit following a meeting Thursday with new agency Director Michael Miano.

"We're still reviewing it," Ailes said.

Independence Coal wants to strip-mine about 1,600 acres along Griffith and Hunter Branch near Uneeda, south of Madison in Boone County. The operation would be called the Constitution Surface Mine.

The mountaintop-removal mine would produce about 1.1 million tons of coal for more than 15 years, starting in January 1999, according to records on file at the DEP offices in Nitro.

Huge shovels and dozers would move nearly 300 million cubic yards of earth and rocks to reach valuable low-sulfur coal reserves.

Independence would put about 200 million cubic yards of that material back on mountaintops. The other 100 million would go into seven valley fills, according to the company's permit application. In some spots, the mine would cut more than 200 feet off the tops of mountains, fill up adjacent valleys and generally level off the land.

Under federal law, mountaintop-removal mines can be exempted from the requirement that strip-mine operators reclaim land to its approximate original contour, or so that it "closely resembles the general surface configuration of the land prior to mining."

To qualify for such variances, operators must show that the flattened land will be improved with future development of industrial, commercial, agricultural or public facilities.

Mountaintop removal has become more popular among mine operators as strip mining has boomed in the state.

Last year, more than two-thirds of the area permitted for new strip mining was for mountaintop removal. In 1997, DEP approved 20 new mountaintop-removal mines that cover 27 square miles.

A Gazette report published on Sunday found that DEP officials have permitted most mountaintop-removal mines without requiring them to obtain a variance.

Of 81 active mountaintop-removal mines approved for West Virginia since 1978, only 20 were granted variances, according to DEP records obtained under the Freedom of Information Act.

By permitting mountaintop-removal mines without variances, the DEP has not required mine operators to prove that flattening the land will improve it.

DEP officials say the approximate-original-contour definition is so vague that it can't be enforced very well. The U.S. Office of Surface Mining has refused to provide states with a more concrete definition.

After his meeting Thursday with Miano, Ailes said the permit needs to be looked at more closely because of issues raised by the newspaper.

Ailes also blamed the permit-approval delay on a formal notice of intent to sue filed two weeks ago by the West Virginia Highlands Conservancy and a group of coalfield residents.

The notice, dated April 16, alleged that the DEP has repeatedly approved mountaintop-removal permits without requiring companies to show the post-mining land will be improved.

Lewis Halstead, assistant DEP chief for mining permitting, said he believes the Independence Mine complies with the law, but wants to make sure.

"I'm going to go back through and address all those topics," Halstead said Thursday.

The Independence Constitution mine applied for a mountaintop-removal variance to the approximate-original-contour requirement.

In its permit application, the company says it will improve the land by turning an area that is currently forest land and fish and wildlife habitat into fish and wildlife habitat.

DEP has routinely approved such post-mining land-use changes as "public recreational facilities," under the law. But among regulators, debate continues about how much public access has to be allowed for recreation before mountaintop-removal mines can qualify for that post-mining land-use variance.

To show it qualifies, Independence on April 13 submitted a letter from Boone East Development Co., the owner of the land where the Constitution Mine will be.

In the letter, Boone East President R. Freal Mize wrote that after the mine is reclaimed, "Public access will be allowed for the purposes of legitimate outdoor recreation activities such as hunting and fishing, subject to the appropriate waivers of liability, indemnifications and assumption of risks associated with the use of the surface property."

In its permit application, Independence wrote, "Because this mining and reclamation plan will produce level areas on the mountaintop and hollow fills, a variety of land uses after reclamation may be possible.

"Soils are generally too poor to provide intensive agricultural or horticultural development, although hay production and grazing has proven successful in many mined lands in the region," the company said. "Commercial or residential development of this property is not considered feasible at this time, but the nearly level land created by this project may present a future opportunity for economic or residential development."

The U.S. Environmental Protection Agency has objected to DEP's plan to issue a separate water-pollution permit to allow Independence to bury streams with the mine's valley fills.

In an April 3 letter, EPA Region III water protection Director Tom Maslany wrote, "We are in the process of reviewing environmental issues associated with the draft permit, including valley fills and stream impacts."

Maslany said EPA needs more time to review the permit. The agency is also reviewing a new state law, signed by Gov. Cecil Underwood, which makes it easier for companies to receive valley-fill permits.

Bill Marcum, a spokesman for Massey Coal, was not in his office Friday.


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