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By Ken Ward Jr.
STAFF WRITERGov. Cecil Underwood tried Thursday to back off his support for a new law that makes it easier for coal companies to bury streams under strip mine waste piles called valley fills.
Underwood instructed state Environmental Protection Director Michael Miano to "exercise discretion" and permit mines, when possible, as if the law had not been changed.
Environmentalists said the move ignored the real issues concerning mountaintop removal mining, and state regulators said they didn't know if they had much discretion to ignore the new law.
"We're looking to see if we have any discretion there," said Ken Politan, an assistant chief at the DEP Office of Mining and Reclamation. "It's premature to give an analysis until we're done with our study and reach a conclusion."
Industry lobbyists, particular Bill Raney of the West Virginia Coal Association and K.O. Damron of A.T. Massey, pushed during the last two legislative sessions for a weakening of rules governing compensation for streams buried by valley fills.
Earlier this year, Underwood signed a bill that would double the size of streams that coal operators could fill in without compensating the state for the loss.
Federal regulators, some coal companies and then-DEP Director John E. Caffrey urged Underwood to veto the legislation.
The governor ignored them and criticized federal officials for getting involved in the issue.
Since the bill was approved, the U.S. Environmental Protection Agency has blocked DEP from issuing water pollution permits for several large mountaintop removal mines.
On Thursday, Underwood sent a two-paragraph letter to Miano to instruct the DEP to rely on the old state mitigation policy until a gubernatorial task force on mountaintop removal mining completes its study of the issue.
"After reflecting upon some of the concerns voiced at the recent public hearing held by the Mountaintop Mining Practices Task Force, I believe that the Division of Environmental Protection should issue mining permits, whenever possible, in the same manner as it did prior to the passage of S.B. 145," the governor wrote.
Miano announced the action on the MetroNews "Talkline" radio show Thursday morning. DEP spokesman Andy Gallagher later issued a news release about the move.
In the release, DEP mining chief John Ailes said the governor's action "makes perfect sense."
Russ Hunter, lawyer for the mining office, said in the release, "The agency is going back to the policy that EPA at the time found acceptable and workable."
In an interview, Hunter said he wasn't sure there was much that DEP could do.
"What determination is the agency to use for mitigation until the task force finishes? That is the real question," Hunter said. "I'm looking at what discretion is there."
Lobbyists for the coal industry's two major trade associations could not be reached for comment Thursday afternoon.
Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, said that focusing on valley fill mitigation misses the real point.
"The only thing that bill does is change the payments for fills," Rank said.
"It's not the basic question," she said. "The basic question is whether the fills are legal at all. We contend they are not."
Rank said that Underwood is trying to quell complaints about mountaintop removal by backing off his support for the mitigation changes.
"It's opened up the floodgates to show what is going on with mountaintop removal," Rank said. "They can't close the floodgates and make people forget about mountaintop removal."
EPA Region III Administrator W. Michael McCabe praised Underwood's action, but said reversing course on the mitigation bill wouldn't stop federal officials from taking a closer look at mountaintop removal.
"My concerns, simply put, are that we do not have enough information about the permanent impacts on water quality, aquatic life and habitat from discharges associated with these massive operations, and about the mitigation that might be undertaken," he said.
To contact staff writer Ken Ward Jr., call 348-1702.
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