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If mine fills illegal, change the law, coal lobbyist says

If strip mine valley fills are illegal under state water quality rules, then the rules should be changed, a leading coal industry lobbyist said Wednesday.

Ben Greene, president of the West Virginia Mining and Reclamation Association, spoke out Wednesday during a meeting on a policy that spells out how to implement a key state water pollution rule.

The rule, called the anti-degradation policy, prohibits activities which degrade streams to the point that various uses - such as fishing, drinking or swimming - are eliminated.

The federal Clean Water Act requires states to have such a policy, and a plan to implement it. West Virginia passed the policy, based on the requirements of federal law, in 1995. The state is also behind schedule in writing a plan to implement the policy.

Members of the state Environmental Quality Board held a meeting in Charleston Wednesday to approve a draft implementation plan to release for public comment.

The policy spells out how Division of Environmental Protection permit writers and other regulators should consider the protection of stream uses, and the prevention of water quality degradation, when they issue new or reissue old pollution permits.

Before approving the draft plan, board members exempted all non-point polluters - those that don't discharge directly from pipes into streams - from the plan.

Under the action, loggers, poultry growers and other farmers would be have to take no action beyond current voluntary best management practices.

Board members also rejected proposals from chemical and other lobbyists that the implementation plan be delayed for at least another year.

Greene complained that board members didn't look into complaints from federal regulators that strip mine valley fills violate the state's anti-degradation policy.

"Does any fill in the state of West Virginia violate the current anti-degradation policy?" Greene asked. "If we're headed down that road, the thing needs to be changed within the policy."

Valley fills are huge piles of strip mine waste dumped in streams and hollows. They are made up of mountains that are sheared off to reach valuable low-sulfur coal reserves underneath.

The U.S. Environmental Protection Agency has objected to at least five strip mine permits in the last three years because agency officials said the associated valley fills violated the anti-degradation policy.

In an April 17 response to a Gazette Freedom of Information Act request, EPA environmental engineer Dan Sweeney wrote that, the state anti-degradation policy says "that at a minimum all waters of the State are to be designated for the propogation and maintenance of fish and other aquatic life.

"Since valley fills cover stream beds and smother any aquatic life present in the stream beds, such filling would be an apparent violation of the anti-degradation policy."

Greene questioned how EPA can conclude the fills violate the law, but then permit them if companies show they can't mine the coal any other way.

"How do you overcome that by doing alternate site studies and benthic studies?" Greene said. "Either it's right from the beginning or it needs to be changed is our position."

Libby Chatfield, technical adviser to the board, said lawsuits threatened by environmental groups over mountaintop removal mining could settle the issues Greene raised.

The West Virginia Highlands Conservancy and a group of coalfield residents have filed several formal notices of intent to sue state and federal regulators. They allege valley fills are not legal under the Clean Water Act.

During Wednesday's board meeting, lawyers for other industries also asked that the anti-degradation policy's implementation plan be delayed.

David Yaussy, a lawyer for the West Virginia Manufacturers Association, said the plan did not clearly state what agencies are to implement the plan.

"There's still a real problem with trying to see who is going to be carrying this out," Yaussy said.

Chatfield said that problem can be cleared up during a public comment period.

Shane Harvey, a lawyer from the industry firm Jackson & Kelly, said there was no reason for the state to rush into the implementation plan.

"I'm unsure if all this isn't premature," Harvey said. "Do we have to do this at all?"

To contact staff writer Ken Ward Jr., call 348-1702.


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