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OSM hesitates on mitigation

SUNDAY GAZETTE-MAIL - One federal regulatory agency has blocked new mining permits in West Virginia. But another may try to back out of a confrontation with the Underwood administration over a new state law that makes it easier for coal companies to bury streams with strip mine waste.A month ago, environmental groups threatened to sue regulators if the state did not seek approval from the U.S. Office of Surface Mining before the law is implemented.The notice of intent to sue, filed in early May, gave state regulators 60 days to seek OSM approval of the new mine "mitigation" law.The state Division of Environmental Protection doesn't plan to ask for OSM approval, and OSM has made no move to force the state to do so.Privately, OSM officials have leaned toward staying out of the situation. Publicly, top OSM officials say they have not made a decision yet.The bill in question nearly doubles the size of stream drainage areas where coal operators can put valley fills - strip mine waste piles that bury streams - without compensating the state for the loss of waterways.Under the measure, most strip mine valley fills could be constructed without companies having to mitigate the stream loss with monetary payments or in-kind projects such as recreational ponds.Gov. Cecil Underwood signed the bill into law on April 8.
The 1977 federal Surface Mining Control and Reclamation Act requires all significant changes in the way states regulate mining to be approved by OSM before they take effect.DEP officials, though, say that because the mitigation bill was added to the state Water Pollution Control Act, and not to the state strip mine law, it does not require OSM approval.Allen Klein, regional OSM chief in Pittsburgh, said his agency is still mulling over various strategies for addressing the mining "mitigation bill." A team of OSM officials in Charleston, Pittsburgh and Washington are reviewing the matter to determine if OSM believes the bill does require federal approval.A draft letter to the state inquiring about the matter has also been written, but is also still being reviewed in the OSM Pittsburgh office.Klein said Friday he doesn't know when OSM will act."I've got an awful lot going on," Klein said. "All I can say is it's on the near horizon."We are not looking for a loophole to stay out of this," Klein added.
"But I can't tell you today where we will come down on that." To contact staff writer Ken Ward Jr., call 348-1702.
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