If the state Division of Environmental Protection is being hauled into federal court over mountaintop removal coal mining, agency officials don't want to go it alone.
DEP lawyers filed papers this week stating that two additional federal agencies should have been named as defendants in the suit filed by the West Virginia Highlands Conservancy.
The suit already named the U.S. Army Corps of Engineers, along with DEP, as a defendant. DEP lawyers claimed it should also have named the U.S. Environmental Protection Agency and the federal Office of Surface Mining.
Lawyers for the Highlands Conservancy and a group of Southern West Virginia residents filed the suit in mid-July. They allege mountaintop removal mines have been permitted in violation of the 1977 Surface Mining Control and Reclamation Act and the federal Clean Water Act.
In a motion filed Tuesday by chief DEP lawyer Bill Adams, the state did not technically ask that EPA and OSM be forced into the case.
Instead, Adams asked that the case be dismissed because lawyers for the Highlands Conservancy did not sue EPA and OSM. Adams said both agencies are "indispensable parties" to the case.
Adams wrote that OSM is supposed to make sure that DEP permits mines in compliance with the federal strip mining law, and should be involved in any suit alleging the state isn't doing so.
"By failing to join OSM in this action and alleging programmatic failures on the part of WVDEP, plaintiffs are inviting the court to assume the role of state program oversight that SMCRA assigns to OSM," Adams wrote.
As for EPA, Adams wrote that the question of whether valley fill strip mine waste piles violate the Clean Water Act must be decided with input from EPA.