DEP Hopes New Mining Policy Heads Off EPA Crackdown
Charleston Gazette
12 August 2010
By Ken Ward Jr.
CHARLESTON, W.Va. -- West Virginia regulators on Thursday issued new
water-quality guidelines they and the coal industry hope head off the
Obama administration's efforts to crack down on mountaintop-removal
mining.
The state Department of Environmental Protection issued a new permit
policy and a "justification" document that essentially reject tougher
U.S. Environmental Protection Agency requirements.
Under the new policy, the DEP would require more detailed toxicity
testing downstream from mining operations and for the first time force
mine operators to show that proposed mines would not have a "reasonable
potential" to cause "significant adverse impacts" on aquatic ecosystems.
The state's policy, though, would largely base such decisions on
methods that EPA scientists believe are not the most sophisticated
available and without using a firm limit on electrical conductivity as
a measure of stream health.
DEP Secretary Randy Huffman urged EPA officials to defer to the new
West Virginia guidance over more detailed federal agency reviews of
Clean Water Act permit applications for valley fills and mining
pollution discharges.
Huffman said he's not "trying to pick a fight" with the EPA, but added
that if federal officials don't find his new policy acceptable, "I
guess we'll have to see what happens."
The National Mining Association has already sued the EPA over the
agency's mountaintop-removal policies, and Huffman's agency has hired
outside lawyers in anticipation of perhaps filing a similar case.
Bill Raney, president of the West Virginia Coal Association, said his
group is still reviewing the new DEP guidance but hopes "it will get
[the] EPA out of the state's face, as far as trying to dictate the
water-quality standards."
Margaret Janes, senior policy analyst for the Appalachian Center for
the Economy and the Environment, said the new DEP guidance "is not well
founded."
"It's essentially [the] DEP acting as a friend of the coal industry,
instead of a regulator," Janes said. "This is a continuation of
business as usual."
In mountaintop removal, coal operators use explosives to blast off
entire hilltops and uncover valuable low-sulfur coal reserves. Leftover
rock and dirt is shoved into nearby valleys, burying streams.
Industry officials consider the method to be highly efficient and the
only way to reach some thin seams of Appalachian coal. Critics point to
the fewer number of workers mountaintop removal needs, and to a growing
body of science that shows forests, water and community health are
threatened by mining practices.
Since taking office in January 2009, the Obama administration has
initiated tougher permit reviews and forced mine operators to reduce
the size and number of valley fills authorized under Clean Water Act
"dredge and fill" permits. Administration officials have said their
goal is to reduce mining impacts, but not to ban surface mining.
EPA officials have said they stepped into the permitting process
because federal law requires them to do so if state regulatory agencies
like the DEP and other federal bodies, such as the U.S. Army Corps of
Engineers, are not properly protecting water quality.
In perhaps its most significant move, the EPA announced new electrical
conductivity guidance in April intended to force coal operators to
rework mining plans to reduce discharges of chlorides, sulfides and
dissolved solids that can harm aquatic life.
EPA Administrator Lisa P. Jackson had said "no or very few valley
fills" likely would be approved under the policy, but last month drew
criticism from environmental groups when the policy allowed a new mine
in Logan County to move forward.
In its guidance, the DEP complained that the EPA conductivity policy
was using "an overbroad, generic criterion . . . to set unattainable
limits."
The DEP also said state officials want to define "significant adverse
impact," not as "a change in the numbers or makeup of the benthic
macroinvertebrate community in a segment of a water body downstream
from a point source discharge," but instead as a "material decline in
the overall health of an aquatic ecosystem."
Still, the DEP guidance bases permitting decisions in large part on the
state's preferred scoring system for stream health, rather than a more
sophisticated method the EPA says helps prevent pollution-tolerant
aquatic life from masking overall impacts.
In a news release, the DEP said its guidance "will result in changes
that are markedly different from how mining has been conducted for the
last 30 years."
Huffman said in an interview that he doesn't know if the DEP guidance
will reduce mining's environmental impacts or if it will be more or
less restrictive than what the EPA has proposed.
"[The] EPA's document plays it safe, and gets to a place where impacts
are minimal or zero," Huffman said, "and while I don't necessarily
believe that's the best way for a developed society to operate, I don't
know that our approach will be any less restrictive.
"No loss is best, but some loss has to be expected for this or any
other activity to occur."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.