State regulators have not kept track of whether coal operators complied with permit requirements that they restore streams to mitigate the loss of waterways buried by mountaintop removal mining.Department of Environmental Protection officials say they failed to properly monitor the agency’s “mine mitigation” program.“We didn’t have a good system in place for tracking those agreements,” said Randy Huffman, director of the DEP’s Division of Mining and Reclamation. “We were not managing them, and following up on them, and making sure all of the work was done.”Huffman said he does not know how widespread the problem is, because an internal investigation is just beginning.There could be dozens — or perhaps hundreds — of agreements with coal companies that have never been implemented.Huffman initially revealed the problem in a brief mention in a speech last month to the West Virginia Coal Association. He discussed it in more detail in an interview last week.Bill Simmons, a DEP deputy mining director, discovered the problem when he was looking for mitigation and stream-restoration agreements concerning the Coal River watershed.On Friday, Simmons said he has so far found 312 mitigation agreements, but has not been able to sort out which have been complied with and which have not.“I discovered that they were not in an organized file, and the agreements were being issued and not being tracked,” Simmons said.Besides questions about stream-restoration projects being completed, Simmons said he believes that the DEP has also not collected money that coal companies owe for monetary mitigation agreements.
One DEP field office has since last fall collected about $500,000 in overdue payments from coal companies, Simmons said.“I’m sure we still have some money out there,” Simmons said. “We’re trying to figure all this out now.”Simmons said he is interviewing candidates to fill a new job Huffman created for a DEP staffer who will sort out the problem and track mitigation agreements.The issue is another problem for a controversial program that was at the heart of the start of the ongoing battle over mountaintop removal mining.Under the federal Clean Water Act, coal companies must obtain a “dredge-and-fill” permit from the U.S. Army Corps of Engineers before they can dig up or otherwise damage wetlands.
Before it will approve such permits, the corps requires companies to show that they have minimized damage and “mitigated” any unavoidable harm.
In a related permit process, the state DEP also requires companies to compensate the state for streams or wetlands that are ruined.Generally, companies in West Virginia have three options: They can build lakes with public access for fishing, build another stream or wetland to replace the one they bury, or pay the state money which the state can then use to clean up streams. State law also gives the DEP broad authority to approve “another mitigation measure acceptable” to the agency.Nearly a decade ago, in 1998, the mitigation process caused a major stir when the coal industry pushed for a change that increased the size of streams that could be buried with mining waste without compensating the state.The industry proposal also dramatically reduced the amount of monetary compensation operators would have to pay if they chose that option for mitigation.Lawmakers, pushed by then-House Speaker Bob Kiss, D-Raleigh, approved the industry bill. Then-Gov. Cecil Underwood signed it, over the objections of his own DEP director, former coal operator Jack Caffrey.
Federal environmental regulators opposed the bill. After it passed, they threatened to hold up approval of new state mining permits because of the changes.A year later, in 1999, lawmakers repealed the industry bill.At the same time, lawmakers demanded to have some oversight of the DEP mitigation process. Lawmakers ordered the DEP to submit an annual report to the Joint Committee on Government and Finance on receipts and expenditures of monetary mitigation from the mining industry.For at least five years, the DEP never gave lawmakers that required report. Agency officials began to do so in late 2005, after the Gazette questioned their failure to do so.In its most recent report, submitted on Jan. 5, the DEP reported that no streams have been reclaimed or restored with money paid under mitigation agreements.As an accomplishment, the report cited $360,000 spent on the completion of the Wallback Dam in Roane County, creating “a new 20-surface-acre recreational lake for the public.”The report said that “all the stream restoration work completed to date has been accomplished in-kind by the coal industry either through Compensation Agreements or Consent Orders.”DEP officials said they couldn’t say how much of that sort of work has been done, because they never kept track.Huffman said DEP officials in Charleston assumed that field inspectors were keeping track of required mitigation projects and making sure they were done. That assumption turned out to be false, Huffman said.“Some of [the mitigation agreements] were getting filed away and forgotten about,” Huffman said.