WV DEP lax in its mining oversight, 3-year federal investigation says

Vivian Stockman courtesy photo | Ohio Valley Environmental Coalition
A West Virginia strip mine operation.

A three-year investigation by the U.S. Department of the Interior has documented persistent failures by the West Virginia Department of Environmental Protection to enforce state rules governing the coal-mining industry, including a lack of proper water quality monitoring, poor oversight of reclamation standards and inconsistent efforts to ensure mountaintop removal doesn’t cause localized flooding.

The probe by Interior’s Office of Surface Mining found, for example, that West Virginia mining inspectors were not collecting water pollution samples on a quarterly basis, even at operations that repeatedly had violated their permit limits, and had conducted no independent sampling of mine sites where underground injection of wastewater was the chosen disposal method.

Federal officials said their findings “demonstrated that repetitive exceedances” of water pollution permit limits “were not being adequately addressed” by DEP surface mining field inspections.

OSM experts also found that the DEP did not make sure that mining flood-protection plans were updated to take into account local on-the-ground field conditions. State officials had not prevented mine operators from using or wrongly applying substitutes for existing topsoil when they receive reclamation variances to avoid having to collect and then reuse that existing topsoil, a practice many operators view as too costly and time-consuming.

The investigation already has prompted some reforms at the DEP’s Division of Mining and Reclamation, but some of those efforts — especially a promise to greatly increase water pollution sampling by state inspectors — require additional funding that could be in short supply, given the state’s budget crisis and the focus by new DEP Secretary Austin Caperton on trimming his agency’s spending. The DEP had agreed with the OSM that it would more than double the state water sampling budget, from $95,000 to $230,000, this year.

OSM officials have told citizen groups, whose complaints prompted the federal examination, that they are still working with the DEP to develop “necessary plans and schedules” on measures to address the other weaknesses identified by federal investigators.

“The history of the West Virginia mining regulatory program is rife with foot-dragging and delay when it comes to meeting its responsibilities for protecting water resources,” said Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, one of 18 state and national groups that prompted the OSM review with a June 2013 petition asking federal authorities to take over regulation of strip mining in West Virginia.

OSM officials rejected the idea of a federal takeover, saying their findings did not rise “to the level of systematic program failures” that would indicate the DEP “is not effectively administering its program,” especially “in light of ongoing state improvement activities.”

The OSM previously had rejected much of the citizen group petition, saying that 14 of 19 original allegations did not warrant a more detailed examination by federal officials.

Under the federal Surface Mining Control and Reclamation Act of 1977, Congress established a broad framework for protecting coalfield communities and the environment from the adverse effects of strip mining. The law anticipates that states will — as West Virginia has — create their own laws, rules and agencies to implement that framework in a way that works best locally. The OSM is charged with ensuring that those state programs comply with at least the minimum protections set by the SMCRA.

The federal investigation appears to have been completed before the changes in administrations in Washington and Charleston, with the findings of the OSM being communicated to citizen groups just before Randy Huffman left the DEP and Caperton was appointed as the agency’s new secretary by Gov. Jim Justice.

The OSM findings were privately communicated to the DEP in draft federal reports sometime last fall and quietly summarized for citizen and environmental groups in a Jan. 12 letter from Thomas D. Shope, the Appalachian regional director for the OSM, but had not yet been made public by either the state or federal governments.

“This important report confirms that state inspectors failed to keep up with new pollution-control standards and compliance timelines, often were not sampling pollution discharges that exceed water quality standards and, when their sampling did show illegal pollution levels, frequently failed to take enforcement action,” said Jim Kotcon, chairman of the West Virginia chapter of the Sierra Club.

Neither Caperton nor Jake Glance, the DEP’s acting public information officer, responded to a request for comment for this report. Caperton, on orders from the Governor’s Office, has declined Gazette-Mail requests for interviews since his appointment was announced on Jan. 13. Grant Herring, the governor’s press secretary, did not respond to a request for comment for this report.

In a Dec. 29 letter to Roger Calhoun, director of the OSM’s Charleston field office, DEP acting mining director Harold Ward outlined some of his agency’s disagreements with details of the federal investigation’s findings, but he also outlined improvement efforts and said additional changes need to be made to ensure the program complies with federal law.

“With the continuing evolution of the mining industry and the new challenges that will accompany these changes, it is imperative that the WVDEP continue to approach regulation of the mining industry in a progressive manner,” Ward wrote in the state’s response letter. “Seeking work improvement processes, along with our commitment to the necessary program improvements, will fulfill our jurisdictional responsibilities.”

Among other things, Ward noted that the DEP’s mining office had reorganized to provide better review of permit decisions and created a new pathway within agency ranks for inspection and enforcement staff to be better paid when they receive additional training and experience.

Regarding the flood-protection plans, OSM officials said that, while they found instances where such plans should have been updated because of changing on-the-ground conditions at mine sites, they also found during an inspection sweep of 84 mine sites following the June 2016 floods that “mining was not exasperating peak water discharges.” The OSM noted that West Virginia’s rules on the issue are “more specific” than federal standards and are “apparently having a positive on-the-ground effect.”

The OSM said the DEP “agreed that many of its current permits” do not have the appropriate variance for using a substitute for native topsoil, and agreed to take action on the problem. The DEP agreed that it would “reevaluate existing permits” with more than 300 acres or 35 percent of the permitted area yet to be disturbed and order the companies involved to obtain the proper state variances where deficiencies were found.

Angie Rosser, executive director of the West Virginia Rivers Coalition, said, “Although long overdue, these new commitments to bring the state’s mining program in compliance with laws that protect our lands, waters and communities come at an opportune moment. As a new administration takes the reins it’s a good time to clean up our act. The state and its people simply can’t absorb any more of the costs when coal companies, and the agency charged with overseeing them, operate recklessly and outside of the law.”

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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