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Ex-regulators criticize mining mitigation

Former top West Virginia regulator David C. Callaghan said Monday that the Legislature and Gov. Cecil Underwood should reconsider a new law Callaghan said allows coal companies to fill in streams without compensating the state.

Two other former top state regulators - coal lobbyist Ben Greene and Charleston lawyer Larry George - agreed with Callaghan, who spoke during the first meeting of a gubernatorial task force on mountaintop removal mining. Callaghan, Greene and George are members of the 17-person panel.

Callaghan said that one of the task force's top priorities should be to push for a rewrite of the new mitigation law. Underwood signed the law in April, over the objections of numerous federal agencies and the state Division of Environmental Protection.

"The whole mountaintop removal concept is in jeopardy," Callaghan said. "The recent actions of the state Legislature need to be re-evaluated. Mitigation needs to be revisited."

Mountaintop removal mining shaves off entire mountaintops to reach valuable low-sulfur coal seams underneath. The leftover rock and earth, which swells when mountains are blasted apart, is dumped in streams in waste piles called valley fills.

Federal law doesn't allow waterways to be filled in unless the person doing the filling compensates for the loss. Usually, the compensation comes in the form of building new wetlands, streams or ponds. In the West Virginia coal industry, most companies choose to pay monetary compensation instead.

Previously, a state Division of Environmental Protection policy required mine operators to compensate the state for filling in streams with a drainage area of 250 acres or more.

The new law, pushed primarily by A.T. Massey Coal Co. and the West Virginia Coal Association, raises that threshold to 480 acres.

Callaghan, who served as chief state environmental regulator during the Rockefeller and Caperton administrations, started the state's valley fill mitigation program during his last stint as DEP director. Originally, Callaghan hoped to use mitigation from strip mine valley fills to clean up state streams polluted with acid mine drainage and acid rain.

During Monday's task force meeting, Callaghan said that most valley fills proposed by coal companies would not require mitigation under the 480-acre threshold in the new legislation.

"The fact of the matter is that the streams of the state don't belong to land companies," Callaghan said. "The streams of the state don't belong to coal companies.

"The streams of the state are public property, and the wildlife that resides in those streams is public property."

Callaghan said, "The new bill that has been passed shuts mitigation down completely. There won't be any mitigation any more. Then the state loses a public resource without compensation."

Greene, president of the West Virginia Mining and Reclamation Association, agreed the mitigation law needs to be revisited.

"The problem with mitigation is that it was founded without any scientific basis," Greene said.

"We have no idea of the value of streams or the wildlife in them," he said.

George, a top Division of Natural Resources official and state Energy Commission under Gov. Gaston Caperton, also agreed the matter needs another look. Further, George urged the administration to stop fighting with the U.S. Environmental Protection Agency over mine mitigation issues.

"I feel very strongly we need to back away from that," George said. "The state needs to back away from this confrontation and have some negotiations and discussions."

Underwood attended a few minutes of the task force's first meeting at the state Capitol. The governor said he didn't expect the group to be a rubber stamp for the coal industry, but that he feels environmentalists have gone overboard in their criticism of mountaintop removal.

"You have an awful lot of rhetoric. People who do it are going to have to take some responsibility for what their rhetoric causes," Underwood said. "This is not a witchhunt. This is an effort to get a true picture of mountaintop removal."

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


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