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Editorial: Mitigation

GOV. Underwood had a perfect opportunity to demonstrate his independence from the coal industry when he faced a "mitigation" bill making it easier for out-of-state corporations to decapitate West Virginia mountains and dump the "spoil" into valleys.

After all, his own Division of Environmental Protection had advised him to veto it. The U.S. Environmental Protection Agency had asked that he veto it, and said its passage into law might cause the feds to take over the state water quality program.

That even made some coal executives nervous about the bill. Arch Coal, the state's largest producer, urged a veto, and Pittston Coal declined to lobby in favor of it.

But some other big coal companies, especially A.T. Massey, pushed hard, and Underwood listened to them instead of the opponents.

When he signed the bill into law on Wednesday, Underwood attacked EPA, saying the federal agency should not "tell West Virginia how to do business." Underwood added: "I've dealt with EPA for 15 years in the private sector and I know their mode of operation - intimidation, threats and delays."

Underwood knows, though, that it is the EPA's duty to watch over the states and step in if they fail to protect people from pollution.

By signing this bill, Underwood signals that he doesn't want to wait for completion of a scientific review currently under way by state and federal agencies before making valley fills easier to permit.

Mountaintop-removal mines produce a huge amount of "spoil" - that stuff that used to be a mountain. The easiest way for companies to dispose of the spoil is to dump it into valleys, burying miles of streams and headwaters.

No one - not federal regulators, not state regulators, not the industry - really knows what effect this has on water quality, especially on the gargantuan scale currently practiced in West Virginia.

When coal companies create these huge valley fills, they are required to perform mitigation to moderate the damage. The most popular form of mitigation in West Virginia has been a payment to DEP of $200,000 an acre. That money is then used for projects that improve the state's water quality.

Alternatively, coal companies can build their own projects.

The bill that Underwood signed raises the threshold for the mitigation requirement from 250 acres of drainage area to 480 acres. Anything smaller will require no mitigation.

In addition, the mitigation fee is no longer $200,000 an acre. Instead, it is "up to" $225,000 an acre, leaving the director of DEP to set it much lower, or even waive it altogether. (The fee isn't paid for the whole watershed - merely for the few acres of actual stream.)

In view of this development, it probably will be best for West Virginians if EPA takes over the state's water quality program. That would place enforcement in the hands of neutral outsiders, not local politicians who are subject to pressure from agents of out-of-state coal corporations.


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