Agency fought full-year flood studies at mines
Earlier this year, West Virginia regulators resisted efforts to require coal operators to study stream flows more extensively to help pinpoint each strip mine's impact on flooding.
In a federal court case, the state Department of Environmental Protection opposed the detailed flow studies proposed by the Ohio Valley Environmental Coalition and other citizens.
Citizens argued that coal companies should collect at least a year's worth of daily stream flow data to help predict possible flooding.
In a lawsuit, the citizens said that this amount of data would help regulators design mining permits that would prevent flooding.
DEP permit reviewers testified that while more data is better, they didn't think a full year of daily flow samples was necessary.
Agency lawyers argued that it was up to DEP Secretary Michael Callaghan to decide how much flow data should be required before new mining permits are issued.
"The frequency of monitoring that's required isn't set out anywhere in the regulations," DEP lawyer Ben Bailey argued in court. "That's another discretionary call." U.S. District Judge Robert C. Chambers sided with DEP. Chambers refused to block a new Arch Coal Inc. strip mine on Island Creek in Logan County. Citizen groups wanted permits for the mine held up unless the company collected data on stream flow.
In the last two weeks, the issue of mining's impact on flooding has become a high-profile topic.
On July 8, heavy rains hit many areas of the Southern West Virginia coalfields.
More than a dozen southern counties have been declared federal disaster areas. More than 6,300 residents have sought flood relief from the Federal Emergency Management Agency. More than 250 families and individuals have received monetary assistance totaling more than $600,000. More than 1,600 housing assistance applications have been approved for a total of $3.34 million, according to FEMA. In interviews and public meetings, many residents have complained that mountaintop removal and other mining made the flooding damage worse.
In the days after the flooding, DEP inspectors cited more than a dozen large mining operations for flood-related violations. Companies were cited for not controlling drainage from their mine sites, and for causing off-site damage.
But top DEP officials have questioned whether they will be able to prove that mining contributed to any of the flooding.
In the federal court case, citizen groups argued for more stringent permit requirements that would help DEP know for sure what impact specific mines had on flooding.
Federal mining regulations state that coal operators must design and operate their mines to "provide protection against flooding and resultant damage to life and property." Under the 1977 federal Surface Mining Control and Reclamation Act, mining permits cannot be issued before regulators perform a comprehensive study of possible water quality impacts.
These studies are called Cumulative Hydrologic Impact Assessments.
Among other things, the CHIA is supposed to include a study of "water quality descriptions, including information on seasonal flow rates, variation and usage." This seasonal stream flow data can be used to help predict whether the mine will cause or contribute to flooding during major rainfalls.
In their federal court lawsuit, citizen groups alleged that DEP does not perform proper CHIAs. The citizens challenged DEP's plans to issue several permits, including a request by Arch subsidiary Mingo Logan Coal Co. to expand a mine on Island Creek in Logan County.
In 1996, the lawsuit said, "surface water runoff from areas affected by past surface coal mining and reclamation operations caused or contributed to a flood on Island Creek" damaged residences and covered W.Va. 44 with water.
Citizens alleged that "neglect by the WVDEP director and his predecessors to control water flow from surface coal mines has caused both flooding and pollution of Island Creek." Properly performed CHIAs, they alleged, would have prevented the flooding.
In the lawsuit, citizen groups said that the CHIA for the new Island Creek permit was supposed to determine how the watershed "reacts to actual rainfall events prior to the commencement of the proposed operation, and will likely react to equivalent rainfall events as the proposed mining operation changes the characteristics of the watershed." While reviewing the Mingo Logan permit application, DEP officials for the first time required a coal company to conduct a detailed analysis of potential flooding.
The result was that DEP forced Mingo Logan to redo much of its mining and reclamation plan. The operation was scaled back, and additional flood-control measures were added. The final analysis showed that the mine would actually reduce peak stream flows during storms.
'This is a state-of-the-art permit' During a preliminary injunction hearing in early March, DEP permit reviewer Mike Reese said, "Unfortunately, I was a nightmare to the company. I caused more grief to this company than any other company I can think of.
"I made certain that every angle, every possible alternative was evaluated associated with the development of this assessment," Reese told Judge Chambers.
"This is a state-of-the-art permit," Reese testified, according to a hearing transcript. "Mingo Logan was, as we called it, the poster child. And we went through the mill with them, and we made them do things that we never made any other company in the state of West Virginia do." During the hearing in federal court in Huntington, Walt Morris, lawyer for the citizens groups, complimented DEP for these efforts.
"I applaud and I think OVEC applauds the modeling exercise, because it led to a number of very good changes as they were described to us in the way that the mining project is going to be constructed as it goes forward," Morris said.
The battle of the hydrology experts But a hydrology expert hired by the citizen group said there was one major flaw in DEP's work: The agency did not require the right kind of stream flow data.
DEP officials used monthly stream flow data collected over the course of six consecutive months. They also had some monthly data for other months in other years.
Robert K. Simons, a hydraulic engineer working for OVEC, testified that the data DEP used wasn't sufficient.
"Island Creek [is] fairly small, and the response to flooding is fairly rapid," Simons testified.
"And in my opinion, to understand the hydraulic processes, one would need to collect data on a fairly frequent basis," he said. "Something on the order of hourly might be required for some period of time to see how an event or how the watershed would respond to a particular storm event, for example." Simons testified that a full year's worth of daily or hourly flow monitoring would be required to really know how streams respond to rainfall during different seasons.
"Anything less than a year, you would have the possibility of missing a key season to understand both the high flow end of the spectrum as well as the low flow," Simons said.
"A storm may only last a few hours, and the watershed response may only last a few hours. And if you collect like one sample during that time, you don't really know where you are in the hydrologic time frame." Simons said that equipment to collect such data would cost about $2,000.
Under cross-examination by Morris, DEP's Reese insisted that a full year's worth of daily sampling wasn't needed to evaluate the Mingo Logan permit.
"I would have to defer to my opinion that six months of data represents seasonal variation," Reese said. "That information included in [the permit] is within a six-month period. Therefore, it is representative of a seasonal variation. That is my opinion." But Tom Galya, a DEP hydrologist who did not formally review the Mingo Logan permit for the agency, testified that Reese was wrong.
"As a scientist, the more data the better," Galya testified. "And for the consultant or company ... I find sometimes it's very difficult for me to understand how they could capture an idea about the hydrology just from a limited amount of data, which might be six months.
"If I had my druthers, I would welcome the 12 months." Bailey, the DEP lawyer, repeatedly objected to Galya being allowed to answer Morris' questions in court.
"I mean, you drag public officials in here, and we can bring however many employees from the [DEP] we want to get their opinions if the Court thinks that's fair game," Bailey said. "The question here is violation of nondiscretionary duties. These questions are about discretion. I'm sure two years [of data] would be better, and three years and four." In a March 8 opinion, Judge Chambers declined to block the Mingo Logan permit. The judge refused to require DEP to collect more stream flow data.
"In short, Plaintiffs argue that the Defendant has too little data from baseline samples to predict flow during wet periods or rainfall events," Chambers wrote in a 14-page decision.
"To some extent, the evidence on this point typifies a battle of experts, each expressing with varying degrees of specificity and assurance what standard should be followed," the judge wrote.
"While more data is preferable, the Court again declines to impose Plaintiffs' recommendations as a standard inherent to Defendant's duty to require and consider baseline data.
"The regulations require water quality and quantity descriptions which include 'information' on seasonal flow rates and seasonal variations," Chambers wrote. "This Court previously recognized Defendant's discretion to decide what amount and source of baseline data is sufficient." In an earlier ruling in the CHIA case, Chambers said that the citizens "may exaggerate the real duty" of DEP to require baseline data.
"The regulations provide Defendant with discretion in determining the amount and source of baseline data information," the judge wrote in a June 15, 2000, ruling.
In his March ruling, Chambers noted that the Island Creek residents "have a strong emotional basis for some of their concerns." The judge also suggested that, in many cases, DEP should consider collecting more baseline data.
"Defendant could without much cost or delay easily remedy some of [the permit deficiencies] argued by Plaintiffs," Chambers wrote.
"Defendant's vulnerability to a legal challenge to the baseline data in this case would be minimized by sampling more representative of West Virginia's wet and dry periods in a typical year."