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Getting tough on valley fills

West Virginia coal operators want the state to permit bigger and bigger strip mines. The state seems willing. But federal regulators may stop them.

Take Pittston Coal, for example. Two weeks ago, the U.S. Environmental Protection Agency forced the company to slash the size of a new Logan County mine by nearly 40 percent.

Under pressure from the EPA, Pittston's Elkay Mining subsidiary reduced the amount of streams it would bury under mine waste piles called valley fills. As a result, the company won't mine all the coal it wanted to.

So far, the EPA has intervened to review only a few strip mine permits, like Pittston's, that allowed companies to fill large streams with mine waste. A bill approved by the Legislature would allow coal companies to fill in bigger streams without compensating the state.

If Gov. Cecil Underwood approves the change, other coal companies might face EPA scrutiny and be forced to make concessions similar to Pittston's.

EPA officials could review every mining permit application in the state. Coal operators might have to wait longer to get permits. They might have to travel to Philadelphia to talk with permit reviewers. State regulators, and the politicians they work for, could lose control over the process.

"A state official said this Pittston's permit is the first time an operator has had to make such a big change in its mining plan, and he expects continuing trouble from EPA on other pending mountaintop removal permits," reported Coal Outlook, an industry newsletter.

"EPA has been making more trouble for valley fill permits over the last year and a half," the newsletter said.

"An EPA official told Coal Outlook this is because valley fills have been getting bigger and bigger, thus causing concern. The EPA official agreed that large valley fills will get continued heavy scrutiny."

Bigger all the time

Over the last 25 years, strip mines have become an increasingly important part of West Virginia's coal industry.

Since the mid-1970s, the share of West Virginia coal produced by strip mines has doubled. Today, strip mines account for roughly one-third of the coal mined in the state. In the last five years alone, the average size of strip mines has also doubled. Today, the average mine permitted by the state measures 450 acres, roughly the size of 360 football fields.

Coal companies need someplace to put the huge amounts of rock and earth they dig up to get at valuable coal seams. Much of this material, which operators call spoil, is dumped into streams. It fills up and levels off hollows.

Federal and state regulators require companies to compensate the public for the loss of streams covered over by valley fills. Companies can build recreational lakes or pay the state money. The money goes into a fund used for similar projects. This compensation is known in legal terms as "mitigation."

Currently, coal operators must mitigate when streams filled in cover drainage areas of 250 acres or more.

The bill passed by the Legislature would raise this threshold to 480 drainage acres. Companies could fill in much bigger streams without compensating for the loss.

The bill was pushed by House Speaker Bob Kiss, D-Raleigh, by coal industry lobbyists Bill Raney and Ben Greene and by A.T. Massey Coal lobbyist K.O. Damron.

Some other coal companies, including Pittston and Arch Coal, did not push the measure. They don't want the permitting delays an EPA takeover might involve. They don't like the negative publicity about strip mining.

Filling Freeze Fork

In late 1996, Pittston Coal applied for a permit to open a new mine near Ethel in Logan County.

The company's Elkay Mining subsidiary would use huge shovels and bulldozers to produce 1.4 million tons of coal a year for about 15 years, according to state Division of Environmental Protection permit records.

To get at the coal, these machines would move about 325 million cubic yards of rock and earth, enough to fill 3.25 million railroad cars.

About two-thirds of the spoil would be put back where it was, on top of the mountains. Under Elkay Mining's plan, the other third - about 94 million cubic yards of rock and earth - would be dumped into Freeze Fork, Sawmill Hollow and other small streams.

In all, more than four miles of streams would have been filled, at least temporarily during mining. Two miles of streams would be permanently filled. The streams feed Dingess Run, which empties into the Guyandotte River near Stollings.

In January and February 1998, the state DEP's mining and water resources branches issued permits for the mine. On March 2, EPA officials objected.

"EPA is concerned about the proposed permanent elimination of at least two miles of productive streams, possible fill reduction alternatives not considered, and the adequacy of the agreed mitigation to compensate for elimination of these streams," wrote Tom Maslany, EPA Region III water division director.

By objecting to the permits, the EPA put Pittston in a tough position. The company wanted to start mining in March 1998. Mining delays can cost companies thousands, or, in extreme cases, millions, of dollars.

Pittston's response

Elkay Mining officials flew to Philadelphia to try to work out a compromise.

Over the past two years, EPA officials have objected to two other large mining projects in West Virginia. Both times, the companies got the agency to back off without major changes in their mining plans.

This time was different, according to DEP records.

After a flurry of negotiations, the company agreed March 11 to reduce the size of the Freeze Fork mine from more than 1,350 acres to 930 acres. Elkay Mining would not mine about 425 acres of coal land it wanted to mine.

The change cut the amount of spoil dumped into streams by two-thirds, from 94 million cubic yards to 33 million cubic years, according to permit changes filed with DEP.

The EPA then dropped its objection.

"Elkay plans to create much shorter valley fills by reducing mining, primarily in the lower portion of the watershed, and by revising material handling plans to dispose of much more overburden on mined areas," Maslany wrote in a March 17 letter.

"As a result, the previously proposed valley fill covering all of Sawmill Hollow and much of Freeze Fork will be replaced by smaller fills in each stream," he wrote. "The total impacted watershed will drop from about 985 acres to 595 acres, a 40 percent reduction. There will also be about the same reduction of stream length and acreage directly impacted by filling."

In a letter sent late last week to Underwood, EPA Region III Administrator W. Michael McCabe promised such permit-by-permit reviews of valley fills will become the norm if the governor signs the relaxed mitigation bill.

"If the bill is signed, we would regretfully have little choice but to increase our reviews of individual draft permits and to object to those permits determined to have inadequate mitigation," McCabe wrote. "This could result in the necessity of coal mining companies negotiating with both DEP and EPA, delays in issuance, and possible takeover of issuance authority by EPA for specific permits if our objections are not satisfied."

McCabe went so far as to state that filling in streams with coal mine waste violates the law. Many environmentalists believe valley fills violate the law, but the EPA has not agreed with that position on the record before.

"This short-term gain of extracting coal by large-scale surface mining in mountainous areas leaves a lasting legacy of valley fills where natural, productive streams once existed," McCabe wrote.

"We have concerns that even the current policy may not adequately address stream and other impacts from the increasing number of very large valley fills and, as a result, we are assessing the overall valley fill situation, including mitigation, in the Eastern U.S. with other federal agencies."


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