To contact staff writer Ken Ward Jr., call 348-1702.
Former Division of Environmental Protection Director Eli McCoy has been hired as an expert witness to defend mountaintop removal permitting in a federal court lawsuit, court records show. Current DEP Director Michael Miano hired McCoy to testify in the agency's defense, according to a notice filed in U.S. District Court in Charleston. The notice does not indicate what subjects McCoy will testify about, or disclose what he is being paid. Bailey & Glasser, a Charleston law firm hired to defend DEP's mountaintop removal policies, arranged for McCoy to testify. Under the DEP contract with Bailey & Glasser, DEP is required to pay the costs of any expert witnesses. An initial bill from Bailey & Glasser, made public last month, did not contain any costs for McCoy. A mountaintop removal report written by McCoy was provided to other parties in the case, but was not filed with Chief U.S. District Judge Charles Haden, court records show. Brian Glasser, a lawyer for DEP, declined to release the report. DEP spokesman Andy Gallagher also did not release the report. McCoy, who is now a consultant with the firm Potesta & Associates, would not discuss the matter. "I'm being paid by a client, and I really don't feel comfortable talking about it," McCoy said last week. A longtime state regulator, McCoy served as DEP director for two years, at a time when mountaintop removal permits were getting larger and the agency's handling of the practice was starting to raise questions. McCoy left the agency in May 1997 to join Potesta & Associates. The firm is run by Ron Potesta, another former top state regulator. Since leaving DEP, McCoy has lobbied the agency on behalf of Hester Industries, a chicken company, and on behalf of quarry operators. McCoy holds a doctorate in biological sciences from the University of Louisville. He is also a graduate of Marshall University. In late 1997, McCoy tried to testify against DEP in a case where Martinka Coal Co. was fighting pollution citations issued by the DEP Office of Mining and Reclamation. Martinka had hired McCoy to help it defend against the citation. Then-DEP Director Jack Caffrey refused to waive a provision of the state Ethics Act and allow McCoy to appear. Under the law, McCoy cannot appear in a representative capacity on any matter which, while at DEP he "personally and substantially participated in a decision-making, advisory or staff support capacity" unless the DEP director consents. At the time, Caffrey said he was concerned McCoy's testimony would create "the appearance of impropriety." "If it looks like a duck, quacks like a duck, you know the rest," Caffrey said. "I trust you'd feel the same if you were in my position." The mountaintop removal case is scheduled to go to trial July 13.