EPA halts Massey strip mine
Federal regulators on Wednesday stopped the state from issuing a permit for a new A.T. Massey Coal Co. mountaintop removal strip mine.
The U.S. Environmental Protection Agency cited a new state law that would allow the Massey mine to fill in streams with waste rock and dirt without compensating the state for the loss.
EPA officials also hinted they would block all similar permits unless the Underwood administration backs off its vigorous support of the new mine "mitigation" law.
"We will look at each permit on a case-by-case basis," said EPA Region III Administrator W. Michael McCabe. "We have to make sure no permit is issued that doesn't have adequate mitigation."
Environmental groups and some top officials within DEP warned Gov. Cecil Underwood that the mitigation bill would prompt EPA actions, as well as permit delays for coal companies.
Some in the coal industry, including Arch Coal Inc., opposed the bill as well. Underwood agreed with the West Virginia Coal Association and Massey lobbyist K.O. Damron and signed it into law.
In a Wednesday letter to Barbara Taylor, chief of the DEP Office of Water Resources, EPA objected to the state issuing a water pollution permit for Massey subsidiary Independence Coal Co.'s proposed Constitution Mine.
The mountaintop removal project would produce about 1.1 million tons of coal for more than 15 years, starting in January 1999, according to a permit application on file with the DEP Office of Mining and Reclamation.
Huge shovels and dozers would move nearly 300 million cubic yards of earth and rocks to reach valuable low-sulfur coal seams along Pond Fork near Uneeda in Boone County.
The company would put about two-thirds of that material back on mountaintops. The other 100 million would be dumped into seven valley fills, burying area streams.
The Constitution Mine is the first through the regulatory pipeline since the state approved its new mine mitigation bill earlier this year.
Investigators from the U.S. Office of Surface Mining are already looking into the project's mining permit. They question whether its proposed post-mining land use - fish and wildlife habitat and recreation lands - allows it to qualify for a special reclamation exemption under state and federal law.
EPA officials first questioned a water pollution permit for the mine and valley fills in April.
In the Wednesday letter to the state, EPA Region III water division Director Thomas Maslany outlined the federal agency's specific objections to the permit.
First, Maslany wrote that EPA wants Independence Coal to "re-evaluate its overburden handling plans to provide further fill minimization or avoidance where feasible."
Earlier this year, EPA used a similar objection to force Pittston Coal Co. to scale down a mountaintop removal mine in Logan County from 985 acres to 595 acres.
Second, Maslany wrote that EPA would not allow the permit to be issued to Independence under the terms of the new state mitigation law.
Previously, the state required companies to pay monetary mitigation or build recreation ponds and stream replacements whenever valley fills were permitted in drainage areas of 250 acres or more.
Under the new law signed by Underwood, coal companies would only have to compensate the state when streams buried by valley fills covered drainage areas of 480 acres or more.
In his letter, Maslany said that EPA would require mitigation for all valley fills that cover streams with drainage areas of 200 acres of more. That's a more stringent requirement than the old state program.
And in a phone interview, McCabe said he was also concerned that the new law giving the Legislature control over any monetary mitigation payments might allow the money to be diverted away from stream replacement projects.
"We need assurance that whatever stream mitigation is spelled out in the permit is actually carried out," McCabe said.
Under federal law, EPA can stop the state from issuing any water pollution permit the federal agency feels is inadequate. Federal officials can also step in an issue a permit that contains the requirements they favor over whatever the state has required.
In the last two years, EPA Region III officials have formally objected to at least four strip mine water pollution permits because of concerns over valley fills. In the earlier cases, the agency quietly sent letters to DEP about the permits. On Wednesday, the EPA press office called reporters to alert them to the objection and set up interviews with McCabe about the issue.
State DEP officials, however, downplayed the matter.
"I don't see this as anything other than EPA doing their job and trying to get answers to their questions," said DEP Director Michael Miano. "I am willing to sit down with EPA representatives and Independence Coal representatives to try to resolve this issue."
Bill Marcum, a spokesman for Massey Coal Services, said, "We received EPA's letter this afternoon and we are in the process of reviewing their objections."