Gazette Online

Environmental groups and coalfield residents are demanding that federal regulators review a new state law making it easier for strip mines to bury streams under valley fill waste piles.

The West Virginia Highlands Conservancy and 10 citizens filed formal notices of intent to sue if federal agencies do not revisit the state's new mine "mitigation" policy.

Federal regulators have complained publicly about the policy. The notices could force federal agencies to back up their statements with formal action.

Notices were filed late last week with W. Michael McCabe, regional director of the U.S. Environmental Protection Agency, and Michael Miano, director of the state Division of Environmental Protection.

The notices, among other things, claim that the state DEP must receive approval from the U.S. Office of Surface Mining before the new policy is implemented.

They also claim the new policy amounts to a change in state water quality standards, something EPA must approve before it can take effect.

State officials require coal companies to compensate the state with monetary payments or in-kind projects - such as ponds or lakes - when they fill in streams with strip mine waste.

Some in the coal industry, along with House Speaker Bob Kiss, D-Raleigh, pushed this year to weaken the state's so-called mitigation policy.

The bill increased the size of streams coal operators can bury under valley fills without compensating the state from 250 drainage acres to 480 drainage acres.

Environmental groups and coalfield residents are demanding that federal regulators review a new state law making it easier for strip mines to bury streams under valley fill waste piles.

The West Virginia Highlands Conservancy and 10 citizens filed formal notices of intent to sue if federal agencies do not revisit the state's new mine "mitigation" policy.

Federal regulators have complained publicly about the policy. The notices could force federal agencies to back up their statements with formal action.

Notices were filed late last week with W. Michael McCabe, regional director of the U.S. Environmental Protection Agency, and Michael Miano, director of the state Division of Environmental Protection.

The notices, among other things, claim that the state DEP must receive approval from the U.S. Office of Surface Mining before the new policy is implemented.

They also claim the new policy amounts to a change in state water quality standards, something EPA must approve before it can take effect.

State officials require coal companies to compensate the state with monetary payments or in-kind projects - such as ponds or lakes - when they fill in streams with strip mine waste.

Some in the coal industry, along with House Speaker Bob Kiss, D-Raleigh, pushed this year to weaken the state's so-called mitigation policy.

The bill increased the size of streams coal operators can bury under valley fills without compensating the state from 250 drainage acres to 480 drainage acres.

Then-DEP Director John Caffrey recommended the bill be vetoed, but Gov. Cecil Underwood signed it into law over Caffrey's objections.

One notice of intent to sue, filed with EPA last week, notes that federal regulators have said the bill violates the federal Clean Water Act and state water quality standards.

The five-page notice states that the bill sought to change state water quality standards to allow the fills. However, the notice alleged, state officials did not hold required public hearings and comment periods for such a change.

That notice, dated May 6, said that a lawsuit would be filed against EPA if the agency did not step in within 60 days.

The other notice, filed with DEP last week, states that the federal Surface Mining Control and Reclamation Act requires state regulators to seek OSM approval whenever a change in the state's mining regulations is proposed.

Before such changes may be made, the notice said, OSM must approve them.

If OSM does not step in within 60 days and require the federal review, a lawsuit will be filed against the agency, the notice stated.

The Highlands Conservancy and the coalfield residents are represented in the cases by Joseph M. Lovett, staff attorney for Mountain State Justice, West Virginia University law professor Patrick C. McGinley, Morgantown lawyer Suzanne M. Weise, and James M. Hecker, a lawyer with the Washington-based group Trial Lawyers for Public Justice.

The group filed another notice of intent to sue DEP in mid-April. It challenges mountaintop removal strip mining, as permitted by the state DEP, as violating federal and state environmental laws.

Federal environmental laws require that potential plaintiffs file notices of intent to sue before filing lawsuits, so that agencies have a chance to fix any problems in their regulatory programs before being taken to court.