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This news story originally provided by  The Daily Mail

1/16/04

Official worries about fill stability 
Brian Bowling 
Daily Mail staff

Friday January 16, 2004; 11:45 AM

While many valley fills built in West Virginia in the last 1970s and early 1980s have turned out well, others are too large and aren't draining like they should, a federal official said today.

Brent Wahlquist, regional director for the U.S. Office of Surface Mining, said many of the areas mined when he was with West Virginia's mining program during the 1980s are a tribute to the industry.

Others, however, don't show up so well when he's done aerial inspections.

Wahlquist spoke at the West Virginia Coal Association's annual Mining Symposium.

The federal mine regulator told an audience of coal industry officials that he's concerned with how well coal companies are certifying the creation of natural drainage in valley fills that keeps them from retaining water. If water builds up in a valley fill, it affects the fill's stability the same way that too much water in the ground can cause mudslides and other landslips.

Another concern, which the OSM addressed in a recently proposed regulation, is that coal companies are building larger fills than they need. A consequence of this is that the fill is built further down a watershed than it needed to have been and, as a result, affects more stream area than it should.

Wahlquist said OSM will also be pushing states to do a better job of enforcing contemporaneous reclamation requirements. While the agency won't be proposing a new regulation, it will ensure that states have the tools they need, he said.

As he tours West Virginia and Kentucky, Wahlquist said he's seen unreclaimed areas that were first disturbed more than two decades ago and haven't produced coal for several years. It's time for the states to get those areas "buttoned up," he said.

OSM will also work with West Virginia on an initiative that will help track down companies that have abandoned mine sites and "make sure the reclamation is done by those who are responsible for it," he said.

The more the state and federal mining programs can hold those "deep pockets" responsible for their environmental messes, the less money active coal companies will have to pay into the special reclamation fund that otherwise has to restore the sites, Wahlquist said.

State Environmental Protection Secretary Stephanie Timmermeyer also spoke at the symposium to review changes the Department of Environmental Protection has made to how it handles permit applications and inspections.

Timmermeyer said the agency has significantly reduced the number of permit applications that have been pending for more than six months.

She said the agency plans to set up a Web site next month that will make it easier for citizens to see what permit applications are pending in their area. The site will list pending permits by county.

With regard to inspections, Timmermeyer said the DEP plans to continue a program where inspectors from its water, waste and coal programs show up at a coal company to evaluate its compliance with all state environmental regulations.

The agency did 35 of those "multimedia" inspections in 2003, and they resulted in 72 citations, she said.

Larry Emerson, of Arch Coal Inc., asked if the state could give companies more notice so they could have their own water and waste experts on hand to accompany inspectors. Timmermeyer said giving the company advance notice would limit the effectiveness of the inspection, but the inspectors could meet with the company experts to go over their findings.

She also said a company could ask for a multimedia inspection so its experts could go along with the state inspectors. After the audience laughed at the idea of requesting a state inspection, she added, "I don't expect my phone to ring off the hook."

Writer Brian Bowling can be reached at 348-4842.


This news story originally provided by AP and The Lexington Heral-Leader

1/17/04

Suggestions for sludge problem

SYMPOSIUM HEARS OF ROBOTS, RECYCLING AND BINDING
By Martha Bryson Hodel
ASSOCIATED PRESS

CHARLESTON, W.Va. - New ways to reduce the amount of water in coal sludge, coupled with new methods for recycling and reusing the sediment, could help limit the number and size of coal waste dams in the rugged terrain of the Appalachian coalfields, especially in populated areas.

Also, mine-mapping robots and horizontal drilling can detect underground voids, possibly preventing a calamity like the October 2000 slurry spill in Martin County.

An estimated 250 million to 300 million gallons of sludge was released into streams in Eastern Kentucky and southern West Virginia when the bottom of the pond collapsed into an abandoned mine that was thought to be much farther below the surface.

J. Davitt McAteer, a former assistant secretary of labor, was named to lead a program to help prevent future spills by creating an impoundment location and warning system, and to review technology that could help minimize the need for impoundments.

A plant in Cadiz, Ohio, is experimenting with a relatively simple recycling process, McAteer told the 31st annual West Virginia Mining Symposium in Charleston yesterday.

The Cadiz plant takes material from old sediment ponds and separates small particles of coal from clay and other contaminants. The process reduces the volume of the material by about 50 percent and produces a high-energy substance that can be burned like coal.

A symposium participant, who did not give his name, told McAteer that Internet availability of the location and warning system for impoundments merely gives ammunition to community activists and environmentalists who are seeking to cause problems for the industry. The participant suggested that the Web site should limit the information about the impoundments.

McAteer said the information needs to be public.

"If I lived downhill from one of these ponds, I'd want to know about it," McAteer said.

To reduce the volume of slurry, the U.S. Department of Energy has patented a technology that involves adding a binding agent, such as an asphalt emulsion, to the mixture of coal and water before mechanical de-watering begins.

There are other commercially available technologies for reducing the volume of material going to the slurry ponds.

Alternatives for storing the waste also are being reviewed.

The Illinois Clean Coal Institute is developing a process for placing coal waste in old underground mine workings, while Penn State University is working on a way to create a coal-water slurry fuel that, when mixed with pulverized coal, produces electricity while reducing emissions of nitrogen oxides.

In the United Kingdom, the University of Greenwich is experimenting with encapsulating coal waste in cement, then using the final product as a building material.


This news story originally provided by AP and  NEPA News

1/17/04

Recycling, other proposals, could reduce coal waste in Appalachia 
The Associated Press 

New technologies to reduce the amount of water in coal sludge, coupled with new methods for recycling and reusing the sediment, could help limit the number and size of coal waste dams in the rugged terrain of the Appalachian coalfields, especially in populated areas. 

From mine-mapping robots to horizontal drilling, there are a number of new ways to detect underground voids, possibly preventing a calamity like the October 2000 slurry spill in Martin County, Ky.

An estimated 250 million to 300 million gallons of sludge was released into eastern Kentucky and southern West Virginia streams when the bottom of the pond collapsed into an abandoned mine that was thought to be much farther below the surface.

J. Davitt McAteer, a former assistant secretary of labor, was named to head up a program to help prevent future spills by creating an impoundment location and warning system, and to review recycling and other technologies that could help minimize the need for impoundments.

A plant in Cadiz, Ohio, is experimenting with a relatively simple process for recycling, McAteer told the 31st annual West Virginia Mining Symposium in Charleston on Friday.

The Cadiz plant takes material from old sediment ponds, and separates coal fines from clay and other contaminants. The process reduces the volume of the material by about 50 percent and produces a high-energy substance that can be burned like coal.

A symposium participant, who did not give his name, told McAteer that Internet availability of the location and warning system for impoundments just gives additional ammunition to community activists and environmentalists seeking to cause problems for the industry. He suggested the Web site should limit the information about the impoundments themselves.

McAteer said the information needs to be public.

"If I lived downhill from one of these ponds, I'd want to know about it," McAteer said.

To reduce the volume of slurry, the U.S. Department of Energy has patented a technology that involves adding a binding agent such as an asphalt emulsion to the mixture of coal and water before mechanical de-watering begins. There are other commercially available technologies for reducing the volume of material going to the slurry ponds.

Alternatives for storing the waste also are being reviewed. The Illinois Clean Coal Institute is developing a process for placing coal waste in old underground mine workings, while Penn State University is working on a way to create a coal-water slurry fuel that, when mixed with pulverized coal, produces electricity while reducing emissions of nitrogen oxides.

In the United Kingdom, the University of Greenwich is experimenting with encapsulating coal waste in cement, then using the final product as a building material.


This news story originally provided by The Charleston Gazette

1/18/04

Blasting problems on rise, DEP says

'Fly-rock' travels to residential property
By Ken Ward Jr. 
STAFF WRITER

State Department of Environmental Protection inspectors have seen an increase in large rocks from strip mines being tossed by explosives onto neighboring residential property.

The program manager at the DEP Office of Explosives and Blasting labeled the trend "a real insurgence" of what the agency calls fly-rock incidents over a six- to eight-month period.

"I'm talking about rocks the size of this podium flying 2,000 feet and landing within 20 feet of a person's home," Jim Ratliff said during a presentation to the West Virginia Coal Association on Friday.

"We're seeing a lot of things like that, and it's happening all across the state," he added. "They're getting closer and closer to residences."

Ratliff spoke as part of DEP's yearly question-and-answer session at the coal association's 31st Annual West Virginia Mining Symposium.

After his talk, Ratliff said he had not put together any statistics on the issue. He said, however, that fly-rock incidents did result in notices of violation being issued to the coal companies at fault.

Ratliff said that the incidents were sporadic and emphasized that no one was injured and no property was damaged.

DEP inspectors have not identified any common threat or cause for the problems, Ratliff said.

In the past few weeks, he said, the problems seem to have died down.

"It kind of peaked and we had a few incidents, but that trend has not continued," Ratliff said.

In mountaintop removal, coal operators use explosives to blast off hilltops to uncover valuable, low-sulfur coal reserves.

During the past five years, complaints about noise, dust and property damage from blasting have been a consistent concern of citizens at public meetings about mountaintop removal.

In a study of mountaintop removal released earlier this year, federal regulators said they believed mine blasting is not a "significant issue" in need of additional restrictions.

The federal Office of Surface Mining and other agencies said that as strip mines grew larger, so have the explosive blasts coal operators use. At the same time, federal blasting limits have not been updated for 20 years.

Still, OSM and the other agencies said, complaints of property damage from blasting seldom are justified. Coalfield residents, the agencies said, should hire private lawyers and go to court if they believe blasting near their homes is a nuisance.

"No additional actions to control blasting are warranted at this time," concluded the study released in May. "As with all nuisances, the affected persons have legal recourse regarding blasting nuisances through civil action."

In comments submitted as part of the public review of the study, the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition called the OSM conclusion "outrageous."

Jim Hecker, a Trial Lawyers for Public Justice attorney who represents the organizations, noted that a preliminary OSM report in February 2002 had said federal blasting rules could be improved.

"Often, the monitoring of blasts is only required as a reaction to citizen complaints," the earlier OSM report said.

"In areas where there will be continued blasting activity over a long period of time and where there is a population concentration there should also be frequent monitoring of blasts in order to establish a record of the intensity of ground vibrations and air-blast that is generated by the mine and extends into the area around surrounding the mine."

Hecker wrote, "Thus, there is a practical, sensible measure for reducing blasting complaints by monitoring their magnitude and frequency.

"This information should then be made publicly available to coalfield residents," Hecker wrote. "Monitoring and disclosure can serve the valuable function of exposing excessive blasting and thereby create an incentive for companies to reduce these impacts, in the same way that public disclosure of the use of hazardous chemicals under the Emergency Planning and Community Right-to-Know Act has reduced use of those chemicals.

"It is unjust to force citizens to go to court to obtain a judicial remedy when administrative remedies are available that could achieve the same goal of reducing nuisance impacts."

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


This news story originally provided by WV Metro News

1/18/04

Mine Fire Status Still Unknown

Staff
Pineville

A possible fire in a Wyoming County mine has idled 1,200 workers 400 at the mine and another 800 at Weirton Steel. The number of spin-off jobs impacted isn't known.

The PinnOak operation has been shut down since Labor Day when the first of two explosions rocked the mine.

In the last four months, mine safety inspectors, the company and even federal officials have been trying to determine what is actually going on underground. Gas levels are dangerously high. But other than that, even the experts aren't sure exactly the situation. That's because it's hundreds of feet below the surface and too dangerous to send miners in to find out.

The mine employs more than 400 workers. They have been laid off since September. Now Weirton Steel has announced they have to lay-off 800 of their workers because of the PinnOak stoppage.

The steel company relies on coal from that mine to make coke, which it uses in the production of steel. No coal coming out of that mine means no coke for Weirton Steel and no work for its employees.

Fred Stinson with the West Virginia office of Miner's Health, Safety and Training says right now it is status quo. Readings they're getting from holes drilled from the surface into the mine are at dangerous levels. They're trying to bring in equipment that would dig deep enough to get the gases underground moving again to stabilize the situation.

Stinson says until that happens, no one will be allowed back in the mine.


This news story originally provided by The Herald Dispatch

1/18/04

W.Va. campaign finance reform needs comprehensive approach

JANET FOUT and JULIE ARCHER - guest columnists

Small improvements have led to progress in the effort to clean up election financing in West Virginia; however, much more is needed.

Decades could be spent passing incremental reforms seeking to patch a fundamentally flawed system. Its time for a comprehensive approach to campaign finance reform that will fundamentally improve and preserve our democratic electoral process.

The West Virginia Clean Elections Act is a voluntary system modeled after laws in Maine and Arizona where 63 percent and 37 percent of the state legislators, respectively, are now free from special interest ties.

"Voter-owned" elections in the two states had broad bipartisan support, saw more women and people of color get elected and increased voter participation. Arizona elected the nations first governor who owes her successful campaign to the people, not special interests.

To qualify for public financing, candidates must pass a threshold test by collecting a substantial number of small contributions from registered voters in his/her district. Qualified candidates must agree to accept no private contributions and refrain from spending their own money and in exchange, they receive a modest amount of public money to run their campaigns.

Over the past several months Subcommittee B of the Legislatures Joint Judiciary Committee has been studying the West Virginia Clean Elections Act (now renamed the "Public Campaign Financing Act").

In December, the bill cleared a major hurdle. Both Sub-Committee B and the full Joint Judiciary committee voted the bill out without recommendation.

The bills passage, even without recommendation, allows the discussion and debate to continue.

Central to the debate had been whether it is fiscally responsible to use taxpayer dollars to fund candidates campaigns.

Unfortunately, under our current funding system, it is increasingly difficult for the average West Virginian to effectively participate in our democracy, either to be elected to public office or to be heard above the special interests that finance campaigns.

Comprehensive campaign finance reform is needed to reduce the influence of special interests in the political process and to enable more qualified candidates to seek elected office.

Undoubtedly, a major hurdle for passing a clean elections law will be finding a stable funding mechanism.

The legislative interim committee studying the Clean Elections Act received a report from a Charleston-based law firm on potential sources of funding for public financing. This analysis identified sources outside of general revenue accounts.

The Reform Institute, a Washington, DC based educational organization working on campaign finance and election reform issues, commissioned the study.

Its hoped that lawmakers will take a closer look at this analysis as they consider the Clean Elections Act during their regular session.

Janet Fout is coordinator for Citizens for Clean Election, a coalition of 28 organizations supporting clean elections legislation in West Virginia, and co-director of the Ohio Valley Environmental Coalition. Julie Archer is research director for West Virginia Citizen Action and the Mountain State Education and Research Foundation.

What's your opinion? Send a letter to the editor


This news story originally provided by AP and  The Daily Mail

1/19/04

New coal industry investment vehicle making strides
By MARTHA BRYSON HODEL
Associated Press Writer

HUNTINGTON, W.Va. (AP) -- A new kind of coal company, now being publicly traded, has the potential to take some of the bumps out of investing in an industry notorious for its boom and bust economy.

Natural Resource Partners L.P. has pursued a business plan since 2002 of expanding its coal holdings across the nation, especially Central Appalachia.

"In the 15 months since our initial public offering, NRP has completed six acquisitions that have increased our reserves by over 50 percent to nearly 1.75 billion tons, nearly tripled our mineral acreage to approximately 1.5 million acres, nearly doubled our number of leases to 120, and increased the number of lessees mining our reserves from 31 to 52,'' NRP Chairman and Chief Executive Officer Corbin J. Robertson Jr. said in a company release.

The company, which has its operating office in Huntington, started the new year by closing on about 5.2 million tons of reserves in Kentucky.

While other coal companies like Richmond, Va.-based Massey Energy Co. purchase reserves to mine, NRP's approach is different -- the company doesn't plan to engage directly in mining. The partnership generates cash flow by leasing coal reserves to mine operators in exchange for royalties, usually with some minimum payment required if mining does not begin right way.

"It's unique,'' said Chris Hamilton, vice president of the West Virginia Coal Association.

At the same time the partnership opens up coal industry investment to individuals, it also frees up coal operators' working capital to expand production.

Salomon Smith Barney, which handled the partnership's stock offering, said NRP has the potential to stimulate investment unhampered by coal's many downsides.

"Since the partnership does not operate any mines, it does not bear ordinary operating costs and has limited direct exposure to environmental and permitting risks,'' said a Smith Barney research report written in December 2002. "In addition, the partnership's lessees bear the labor risks, such as health care legacy costs, black lung benefits and worker compensation costs associated with operating the mines.''

The company's reserves are scattered among the three principal coal producing regions of the United States: Appalachia, the central Illinois Basin and the Powder River Basin in Wyoming and Montana.

An estimated 19 percent of the company is publicly held. Robertson owns about 40 percent. The company's shares closed at $37.95 on Friday.

The partnership was formed by a merger of WPP Group (formerly Western Pocahontas Properties, New Gauley Coal Corp. and Great Northern Properties) and Arch Coal, the nation's No. 2 coal producer. Initially, Arch controlled about 35 percent of the partnership, but sold part of its interest for $115 million in December.

Most of the company's future acquisitions likely will come from the Appalachian region, Smith Barney said.

"We suspect the partnership will spend the majority of its time, at least initially, looking at acquisition opportunities in Central Appalachia given the large concentration of private ownership in the region,'' the analyst said.

Most buying opportunities are expected to come from financially troubled companies in need of cash and family owned entities wanting to liquidate their coal reserves, Smith Barney said.


This news story originally provided by The State Journal

1/20/04

Energy Can Remain a Key Economic Force

By BETH GORCZYCA
bethg@statejournal.com 

If health care is paying for the sins of the past, some in the state want West Virginia to start planning for its future by protecting its natural resources.

While just about everyone, including environmentalists, said coal mining will continue in the foreseeable future, they believe the state should plot its energy policy for the next 10 or 20 years now.

They said the state has a perfect opportunity to emerge as an energy leader and provider, but it must prepare, protect and plan. That includes protecting and evaluating water supplies, monitoring gas and oil resources and developing even more uses for renewable and clean energy, such as solar, wind and hydrogen power.

Some want the next governor to develop a comprehensive energy plan for the state's immediate and long-term future.

In addition to an energy plan, many want the state to develop a natural resources plan something that outlines how we will use, preserve and conserve the natural resources that could make West Virginia rich.

"Water is definitely an issue," said Janet Fout of the Ohio Valley Environmental Coalition. "I'm glad to see some people looking at water quantity and quality, especially when you consider that West Virginia-American Water is now owned by a multi-national corporation.

"Globally, drought is a big issue. We need to know how much water we have, what it's quality is and make sure some global company isn't pumping it out of the state as fast as it can."

In addition, some would like to see the state adopt a development plan that could evaluate the cost of "rural sprawl" and develop a plan to contain it. Rural sprawl, or the problem of having too few people too spread out, increases the cost of extending basic infrastructure to people. It also causes larger problems for states and counties in terms of education, emergency services, medical care and police protection.

Economists say the state may have five years before it is totally broke. Extending infrastructure to every ridge and hollow is simply too expensive.

But if the state wants to develop some of its more rural and economically depressed areas, extending infrastructure is essential. Many areas of the state lack roads, sewer systems or access to county water, let alone Internet connections. Attracting businesses to those areas is nearly impossible without those basic elements.

Rather than struggle to keep shrinking areas vibrant, some people have suggested the state let natural selection play out. Communities that are viable survive. Those that are not become ghost towns like so many towns in the Old West. Through policies and careful fiscal selection, the state can encourage people to move to more viable areas from the remote hills and hollows where they currently live. The move would end up saving the state money and help residents improve their quality of life, some say.

"We may need to look at relocation policies to tackle rural sprawl because we can't continue to provide everything to everyone," said Mark Burton, an economist with Marshall University. "If someone wants to live on the backside of a mountain, that's fine, but they can't expect the state and county to come out to them. They can't expect school buses to come pick their children up. People are free to live where they want, but the state doesn't have to help them."


This news story originally provided by The Courier-Journal

1/20/04

Judge slashes fine in largest slurry spill

Coal company to pay $5,600, not $55,000
By JAMES R. CARROLL
jcarroll@courier-journal.com

WASHINGTON An administrative law judge has cut by 90 percent a $55,000 fine imposed against the Eastern Kentucky coal company whose October 2000 impoundment collapse resulted in the nation's largest coal slurry spill.

Judge Irwin Schroeder said in his order that he viewed Martin County Coal Corp.'s negligence in the spill as "moderate" and that the penalty assessed by the federal Mine Safety and Health Administration was "excessive." He cut the fine to $5,600.

The decision, handed down Jan. 14, outraged critics who argued that Schroeder's move, combined with his dismissal last year of another citation carrying a $55,000 fine, has allowed Martin County Coal and its parent, Massey Energy, to escape punishment.

"No administrative law judge that is looking at reality as to what happened in Martin County would lower a penalty from $55,000 to $5,600. That's not even reality," said Monroe Cassady of Inez, who lives on Coldwater Creek where some of the spill occurred and who founded an activist group, the Big Sandy Environmental Coalition.

"I think it makes a mockery of our mine safety laws," said Amanda Moore, staff attorney with the Appalachian Citizens Law Center in Prestonsburg. The decision, she said, "is basically saying a company can be reckless with the lives of miners and surrounding communities and then have to pay pocket change as a penalty."

MSHA and Massey have 40 days to appeal Schroeder's decision. Representatives were unavailable for comment yesterday.

AN ESTIMATED 310 million gallons of water and sludge penetrated what turned out to be the thin bottom barrier of the 72-acre Big Branch Impoundment on Oct. 11, 2000. The black mass poured out of underground mine works, fouling streams, polluting water supplies, killing fish and wildlife and damaging property in Kentucky and West Virginia.

No one was killed or injured, but the 75-mile-long swath of muck in the Big Sandy River area was considered the worst environmental disaster in the southeastern United States.

The federal Office of Surface Mining and MSHA later determined that Massey had ignored warnings of a pending breakthrough. The impoundment had a smaller leak in 1994, but not enough measures were taken to prevent the larger disaster, the agencies said.

In April 2002, MSHA levied $110,000 in fines against Massey $55,000 for each of two major violations for an "unwarrantable failure" to prevent the Martin County spill.

In August, however, Schroeder threw out one of the two citations, which said the company had not complied with plans to make a discharge pond safer after the 1994 leak. The Federal Mine Safety and Health Review Commission judge said MSHA alleged the company was required to do things that were "far from standard industry practice in impoundment management."

In his latest ruling, Schroeder said he agreed with MSHA that there was evidence of increasing flows from the impoundment before the major spill. But the plan under which data were gathered and analyzed was "not carefully drafted," said Schroeder, who visited the impoundment site.

"I am persuaded that while the technical area of predicting impoundment failure is still in the development stage, much more could and should have been done here," Schroeder wrote. "I am also persuaded that the failure to take advantage of available opportunities to evaluate the ... flow data contributed in some measure to the magnitude and timing of the impoundment failure.

"ON THE OTHER hand," he continued, "I am not persuaded that the failure to take advantage of these opportunities was an unwarrantable failure in the sense of wanton or reckless disregard for the risks to life and property. I would assess the negligence as moderate."

Tom FitzGerald, director of the Kentucky Resources Council environmental group, called Schroeder's decision "cold comfort to everybody who lives downstream, and to all the communities that had to expend their resources" to deal with the spill.

THE LAW already limited how hard MSHA could hit Massey for what happened, he said, and reducing already low fines "certainly doesn't encourage more thorough mapping and validation of underground mine works in the future."

FitzGerald said that until coal companies are required to more fully account for the potential harm from impoundments "they are going to continue to take the cheapest way out in disposing of mine waste."

Cassady called the decision "very, very shabby."

He said he never heard about Schroeder visiting the area, but he said the judge saw the wrong things and talked to the wrong people.

"If he had come to a community person, and they had stuck him out in the creek up to his knees and pulled his leg out and it was black, or up to his waist and he was black from the waist down, he'd have a different opinion on it," Cassady said.


This news story originally provided by WV Metro News

1/20/04

Changes Possible in Truck Legislation

Staff
Charleston

Marion County Delegate Mike Caputo is upset with proposed changes to the overweight coal truck bill approved by state lawmakers and signed by the governor last year. Caputo says the Rule-Making Review Committee is recommending the change.

The new law, which Caputo fought, allows coal truck drivers, with special permits, to haul up to 120,000 pounds in 15 southern counties.

The law also requires shipping and receiving records to be reported to the state. That provision covered trucking in all 55 counties.

Delegate Caputo says the Rule-Making Review Committee is recommending a change in the shipping and receiving provision. He says the committee wants the information report in the 15 southern counties, not the other 40 counties.

Caputo says the one thing he like about last year's bill was that companies would have to show what they'd been hauling -- whether it was in Marion County or McDowell County. Trucks driving through every county had to be accounted for.

Caputo plans to challenge the committee's decision. The recommendation will first have to go through the House Judiciary Committee and then make it through a floor vote in the House of Delegates.


This news story originally provided by The Charleston Gazette

1/27/04

Expert review of DEP mine permits proposed
By Ken Ward Jr.
STAFF WRITER

A panel of experts will review state mining permits to make sure they adequately protect water quality, under the proposed settlement of a four-year-old lawsuit.

Lawyers for several citizen groups and the state Department of Environmental Protection have reached a settlement in principle, according to federal court filings.

The case focused on cumulative hydrologic impact assessments, or CHIAs. These are studies that DEP is required to perform before it approves permits. The case has become known as the CHIA case.

In January 2000, the Ohio Valley Environmental Coalition and other groups sued DEP. They alleged that the agency did not adequately consider potential water quality impacts before it issues permits.

Other citizen groups listed as plaintiffs are the Hominy Creek Preservation Association and the Citizens Coal Council. The U.S. Department of Interiors Office of Surface Mining was also a defendant in the case.

Under the settlement, DEP will form a team that will review agency permit decisions and the CHIA studies that are part of those decisions.

The team will include experts picked by environmental groups and the coal industry, along with officials from DEP and OSM, Tom Clarke, a lawyer for the DEP Division of Mining and Reclamation, said Monday

The team will examine a maximum of 12 permits over a one-year period, Clarke said. The team would issue a report or make recommendations about how DEP could strengthen its CHIA studies.

Walt Morris, a lawyer for the citizens, had mixed success in the lengthy legal battle. The citizen suit blocked part of a Massey Energy mine in Nicholas County, but lost in an effort to stop a new Arch Coal operation in Logan County.

Under the law, DEP is not supposed to issue any permits unless based on an assessment of the probably cumulative hydrologic 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.

In their lawsuit, environmentalists said that DEPs failure to comply with this requirement deprived them of their statutory right to protection of their health, safety, property rights. The suit said DEPs inaction also failed to protect state streams from adverse effects of mining and reclamation operations.

Last month, OSM approved a change in state mining rules that may have undermined the citizen groups case.

DEP had proposed to delete from state mining rules a broad definition of cumulative impact. The agency also proposed to add to its rules a more narrow definition of material damage, limiting that term to significant adverse impact[s] on a streams existing uses.

In their lawsuit, the environmentalists had alleged that violations of state water quality standards for specific pollutants amounted to material damage. The new DEP definitions set a tougher standard for proving material damage has been caused.

During a public comment period on the rule change, one individual complained that DEP had not articulated a reasoned analysis for making the changes.

OSM, in approving the DEP changes, said that comment is beyond the scope of our criteria.

Whether or not the state has provided a reasoned analysis of proposed changes is an issue for the state rulemaking process, OSM said in a December Federal Register notice. Our criterion is only to the issue of whether or not the proposed changes are consistent with the Federal requirements.

Lawyers for both sides informed U.S. District Judge Robert C. Chambers of the potential settlement in a Jan. 12 court filing.

Later that week, on Jan. 15, coal industry lawyer Bob McLusky discussed general terms of the proposed deal in a presentation to the West Virginia Coal Association.

Its a pretty benign settlement, and generally a victory for the government and the industry, McLusky said.

Morris, the citizen group lawyer, declined comment until the settlement is finalized.

Clarke, the DEP lawyer, said he hesitated to say much about the deal.

Until I get it finalized, its not something I can feel really good about, he said. I dont think [the environmentalists] case is particularly strong. I think thats safe to say.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

 

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