Threatened suit charges DEP doesn't do mine water studies
Federal law requires state regulators to figure out how mountaintop removal coal mines will affect streams before they issue permits for those mines.
The state Division of Environmental Protection is supposed to use that information to make coal operators limit damage to state waters.
A coalition of environmental groups says DEP isn't doing this job, and has threatened to file a lawsuit if the agency doesn't start.
Last week, the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy sent DEP Director Michael Miano a formal notice of intent to sue under the 1977 Surface Mining Control and Reclamation Act.
The notice gives DEP 60 days to show that it isn't violating the law, or to stop any violations, or the agency could face a federal court lawsuit from OVEC and the Conservancy.
The notice, filed Thursday, follows a federal court lawsuit in which the Conservancy alleged DEP and the U.S. Army Corps of Engineers violated various provisions of surface mining and water pollution laws in permitting mountaintop removal mines.
The environmental groups are represented by Charleston lawyer Joe Lovett and Charlottesville, Va., lawyer Walt Morris.
The new notice focuses on a federal legal requirement that DEP review "cumulative hydrologic impact assessments," or CHIAs, before issuing any new surface mining permits in the state.
Under federal and state regulations, DEP is not supposed to issue any permits unless, "based on an assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance, the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area."
The regulations require these assessments to include, among other things:
An analysis of the area within which impacts resulting from the proposed operation may interact with impacts of all anticipated mining on surface and groundwater systems.
A specific review of all anticipated mining within the cumulative impact area.
A determination of the cumulative hydrologic impact which constitutes material damage to each body of water, including each groundwater aquifer, in the cumulative impact area.
According to the rules, DEP must also require coal companies to develop surface and groundwater monitoring plans which will analyze water impacts from mining in areas outside of the direct area permitting for mining.
The notice of intent to sue lists 14 mining permits, including both surface and underground operations, which environmentalists allege were granted without the proper water studies.
Among the companies named in the notice are White Flame Energy Inc., Rawl Sales and Processing Inc., Hobet Mining Inc., Elk Run Coal Co., and Bluestone Coal Co. Included are subsidiaries of Arch Coal Inc. and A.T. Massey Coal, two of West Virginia's largest coal producers.
Cindy Rank, mining chair of the Conservancy, said the notice is also aimed at four permits that would allow nearly 8 square miles along Island Creek, near the Logan-Mingo County line, to be stripped. Those mines are proposed by the non-union arm of Arch Coal and by Massey subsidiary Road Fork Development.
"This is a real good example of why CHIAs need to be done correctly," Rank said Friday.
"There are four more large operations proposed for the main stream of Island Creek, and you really have to look at what each one and all of them are going to do the entire watershed," Rank said. "They should consider all anticipated mining and be able to define what is going to happen to the groundwater and surface water when that mining is done.
"We've been asking them to do this for years, and they didn't seem to understand. So we're applying the legal language and strategy."
Earlier this month, the U.S. Environmental Protection Agency stopped the state DEP from issuing a water discharge permit for the Road Fork Development mine on Island Creek.
"The proposed surface mine will include 58 discharges directly into, or into tributaries of, Middle Fork, Rockhouse Branch, Conley Branch, Island Creek, Pit Branch and Rich Creek, all in the Guyandotte River Drainage Basin," EPA Region III Administrator Michael McCabe said in a Jan. 11 letter to DEP.
"The proposed surface mining operation will include disposal of excess overburden in three valley fills with instream sedimentation ponds constructed at the toes of the fills," McCabe wrote. "The largest proposed valley fill has a drainage area of approximately 350 acres."
McCabe said EPA would not allow the mine until a more comprehensive study of its water pollution impacts is conducted, as required by a partial settlement of the federal court lawsuit over mountaintop removal.
In a Jan. 15 speech to the West Virginia Mining and Reclamation Association, Miano said that he doesn't think surface mining is harming the state's environment.
"My longstanding position is that I believe there is no detrimental effect to the environment as a result of mountaintop mining," Miano said. "But I certainly welcome any study that can reinforce my vision or disavow my position."
Laura Foreman, an organizer with OVEC, said, "In Miano's position, he has got to understand that there are serious impacts. There are too many things that we already know about impacts to the communities and water quality.
"I could understand if he were still with the coal industry and trying to justify what they are doing," Foreman said. "But as director of the DEP, I don't think he should be saying things like that."