Earlier this year, West Virginia regulators resisted efforts to require coal operators to study stream flows more extensively to help pinpoint each strip mine's impact on flooding.
In a federal court case, the state Department of Environmental Protection opposed the detailed flow studies proposed by the Ohio Valley Environmental Coalition and other citizens.
Citizens argued that coal companies should collect at least a year's worth of daily stream flow data to help predict possible flooding.
In a lawsuit, the citizens said that this amount of data would help regulators design mining permits that would prevent flooding.
DEP permit reviewers testified that while more data is better, they didn't think a full year of daily flow samples was necessary.
Agency lawyers argued that it was up to DEP Secretary Michael Callaghan to decide how much flow data should be required before new mining permits are issued.
"The frequency of monitoring that's required isn't set out anywhere in the regulations," DEP lawyer Ben Bailey argued in court. "That's another discretionary call." U.S. District Judge Robert C. Chambers sided with DEP. Chambers refused to block a new Arch Coal Inc. strip mine on Island Creek in Logan County. Citizen groups wanted permits for the mine held up unless the company collected data on stream flow.
In the last two weeks, the issue of mining's impact on flooding has become a high-profile topic.
On July 8, heavy rains hit many areas of the Southern West Virginia coalfields.
More than a dozen southern counties have been declared federal disaster areas. More than 6,300 residents have sought flood relief from the Federal Emergency Management Agency. More than 250 families and individuals have received monetary assistance totaling more than $600,000. More than 1,600 housing assistance applications have been approved for a total of $3.34 million, according to FEMA. In interviews and public meetings, many residents have complained that mountaintop removal and other mining made the flooding damage worse.
In the days after the flooding, DEP inspectors cited more than a dozen large mining operations for flood-related violations. Companies were cited for not controlling drainage from their mine sites, and for causing off-site damage.
But top DEP officials have questioned whether they will be able to prove that mining contributed to any of the flooding.
In the federal court case, citizen groups argued for more stringent permit requirements that would help DEP know for sure what impact specific mines had on flooding.
Federal mining regulations state that coal operators must design and operate their mines to "provide protection against flooding and resultant damage to life and property." Under the 1977 federal Surface Mining Control and Reclamation Act, mining permits cannot be issued before regulators perform a comprehensive study of possible water quality impacts.
These studies are called Cumulative Hydrologic Impact Assessments.
Among other things, the CHIA is supposed to include a study of "water quality descriptions, including information on seasonal flow rates, variation and usage." This seasonal stream flow data can be used to help predict whether the mine will cause or contribute to flooding during major rainfalls.
In their federal court lawsuit, citizen groups alleged that DEP does not perform proper CHIAs. The citizens challenged DEP's plans to issue several permits, including a request by Arch subsidiary Mingo Logan Coal Co. to expand a mine on Island Creek in Logan County.
In 1996, the lawsuit said, "surface water runoff from areas affected by past surface coal mining and reclamation operations caused or contributed to a flood on Island Creek" damaged residences and covered W.Va. 44 with water.
Citizens alleged that "neglect by the WVDEP director and his predecessors to control water flow from surface coal mines has caused both flooding and pollution of Island Creek." Properly performed CHIAs, they alleged, would have prevented the flooding.
In the lawsuit, citizen groups said that the CHIA for the new Island Creek permit was supposed to determine how the watershed "reacts to actual rainfall events prior to the commencement of the proposed operation, and will likely react to equivalent rainfall events as the proposed mining operation changes the characteristics of the watershed." While reviewing the Mingo Logan permit application, DEP officials for the first time required a coal company to conduct a detailed analysis of potential flooding.
The result was that DEP forced Mingo Logan to redo much of its mining and reclamation plan. The operation was scaled back, and additional flood-control measures were added. The final analysis showed that the mine would actually reduce peak stream flows during storms.
'This is a state-of-the-art permit' During a preliminary injunction hearing in early March, DEP permit reviewer Mike Reese said, "Unfortunately, I was a nightmare to the company. I caused more grief to this company than any other company I can think of.
"I made certain that every angle, every possible alternative was evaluated associated with the development of this assessment," Reese told Judge Chambers.