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Ex-DEP Director McCoy to testify in mining case

Former Division of Environmental Protection Director Eli McCoy has been hired as an expert witness to defend mountaintop removal permitting in a federal court lawsuit, court records show.

Current DEP Director Michael Miano hired McCoy to testify in the agency's defense, according to a notice filed in U.S. District Court in Charleston.

The notice does not indicate what subjects McCoy will testify about, or disclose what he is being paid.

Bailey & Glasser, a Charleston law firm hired to defend DEP's mountaintop removal policies, arranged for McCoy to testify.

Under the DEP contract with Bailey & Glasser, DEP is required to pay the costs of any expert witnesses.

An initial bill from Bailey & Glasser, made public last month, did not contain any costs for McCoy.

A mountaintop removal report written by McCoy was provided to other parties in the case, but was not filed with Chief U.S. District Judge Charles Haden, court records show.

Brian Glasser, a lawyer for DEP, declined to release the report. DEP spokesman Andy Gallagher also did not release the report.

McCoy, who is now a consultant with the firm Potesta & Associates, would not discuss the matter.

"I'm being paid by a client, and I really don't feel comfortable talking about it," McCoy said last week.

A longtime state regulator, McCoy served as DEP director for two years, at a time when mountaintop removal permits were getting larger and the agency's handling of the practice was starting to raise questions.

McCoy left the agency in May 1997 to join Potesta & Associates. The firm is run by Ron Potesta, another former top state regulator.

Since leaving DEP, McCoy has lobbied the agency on behalf of Hester Industries, a chicken company, and on behalf of quarry operators.

McCoy holds a doctorate in biological sciences from the University of Louisville. He is also a graduate of Marshall University.

In late 1997, McCoy tried to testify against DEP in a case where Martinka Coal Co. was fighting pollution citations issued by the DEP Office of Mining and Reclamation. Martinka had hired McCoy to help it defend against the citation.

Then-DEP Director Jack Caffrey refused to waive a provision of the state Ethics Act and allow McCoy to appear.

Under the law, McCoy cannot appear in a representative capacity on any matter which, while at DEP he "personally and substantially participated in a decision-making, advisory or staff support capacity" unless the DEP director consents.

At the time, Caffrey said he was concerned McCoy's testimony would create "the appearance of impropriety."

"If it looks like a duck, quacks like a duck, you know the rest," Caffrey said. "I trust you'd feel the same if you were in my position."

The mountaintop removal case is scheduled to go to trial July 13.

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


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