WVDEP fill policy: Game changer or more of the same?

January 6, 2010 by Ken Ward Jr.

We’re breaking the story in the Gazette print edition about a new West Virginia Department of Environmental Protection policy that essentially halts — temporarily at least — review by WVDEP of new surface mining applications that propose valley fills.

There’s a link to the Web version of that story here.

secretary-randy-huffman-portrait_small.jpgNow, WVDEP Secretary Randy Huffman and I aren’t exactly best friends. But we get along fairly well, given that much of my job involves pointing out things that Randy’s agency does wrong. And I will say that, unlike some previous top WVDEP officials, Randy always calls me back and is pretty patient answering my questions.

But it’s not very often that Randy calls me up unsolicited. And that’s what happened this time … apparently some folks in the agency saw the part of one of my blog posts on the Hobet 45 Mine where I asked:

Over at the West Virginia Department of Environmental Protection, Secretary Randy Huffman would like to see EPA back off and let WVDEP regulate the state’s coal industry. What measures will Huffman announce by which his agency would do what EPA did in this instance? Why does WVDEP issue a SMCRA permit for a mine like this, only to sit back and watch EPA push for a better permit with fewer impacts?

And since, according to Randy, WVDEP was already working on a new policy, he thought he’d call and tell me all about it … Try as I might, I couldn’t get him to just post a comment on Coal Tattoo and join our discussion.

In short: WVDEP is going to stop processing permits for surface coal mines that propose valley fills, until either U.S. EPA comes up with a firm policy on how those permits should be reviewed, or until WVDEP comes up with its own such policy.

Randy explained two reasons for this: First, since U.S. EPA is re-examining all of the permits, mining plans are changing dramatically. So, his theory goes, it’s a waste of time for WVDEP staff to review permits that are going to change so radically after EPA gets its hands on them; and second, Randy says he’s come to the conclusion that some sort of changes need to be put in place to reduce water quality impacts downstream of valley fills.

One of the more interesting things Randy told me was:

Our opposition [to EPA’s permit reviews] has been more about the process than it has been about the science. There is a lot of validity to the concerns about the downstream impacts.


Gazette photo by Rusty Marks.

Randy and WVDEP have been under a lot of public pressure for may years about mountaintop removal. Last year, direct action protests took on a new life, at least one former WVDEP Director was critical of the state’s lack of action to deal with this issue, and within the agency itself some staffers were becoming increasingly concerned about the direction things were headed. Some fairly high-up WVDEP staffers have said that the demise of Dunkard Creek has been a wake-up call within the agency.

And Randy’s statements to me are a pretty big change from his testimony last June to a U.S. Senate committee in which Randy practically mocked U.S. EPA’s scientific studies about the downstream damage to water quality being done by mountaintop removal:

Without evidence of any significant impact on the rest of the ecosystem beyond the diminished numbers of certain genus of mayflies, the State cannot say that there has been a violation of its narrative standard.

Or his odd statement that seemed to put WVDEP in the position of being more concerned about the economics of coal than, well,  protection of West Virginia’s environment:

The greater concern for the Department of Environmental Protection, however, as protector of the State’s water resources, is the unintended consequences of the Environmental Protection Agency’s recent actions that have the potential to significantly limit all types of mining.

So what now?

Well, EPA heard about this WVDEP policy from me. So we’ll have to wait for their reaction until they learn more. Officials from the West Virginia Coal Association were briefed on Randy’s plans, but when I reached association president Bill Raney he didn’t want to comment yet. Perhaps it’s a minor point, but if WVDEP is serious about coming up with a decent policy that will reduce impacts from future mining, wouldn’t it have been a good idea to call in someone from a citizen group, tell them about it, and ask for their input and support?

Someone more cynical than me might wonder if this isn’t some Manchin administration plot to put more pressure on EPA to either lay off its permit reviews or hurry through some minor tweaking of rules that doesn’t really change the size and scope of these mines or the damage they do.

Imagine … the coal industry could easily jump on this and blame EPA, saying the Obama administration has essentially prompted a permit moratorium by WVDEP. Think it couldn’t happen? Then you weren’t around when then-WVDEP Director Mike Castle blocked continued filling of valleys with mining waste at operations that were already permitted in response to one of Judge Haden’s mountaintop removal rulings in 1999.


I asked Matt Turner, Manchin’s communications director, for a comment on the new WVDEP policy, and this is what he gave me:

The governor supports Secretary Huffman and the direction DEP is taking to use their resources in the best possible way, and that will keep people in West Virginia’s coal industry working.

No mention there of trying to reduce mountaintop removal’s impacts … And who knows what will happen  when WVDEP issues its “framework” for how to apply West Virginia’s water quality standards — especially the controversial “narrative standard” that prohibits:

… Any other condition that adversely alters the integrity of the waters of the state  … no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.

That’s the one EPA has been citing as it reason for going after major strip-mining permits. Maybe the state will issue some incredibly weak guidance, in the hopes of avoiding any tougher language from EPA to define that standard or to take action about downstream pollution problems like selenium and increased conductivity.

But what if Randy Huffman and his staff at WVDEP are taking some advice from U.S. Sen. Robert C. Byrd, and trying to “embrace the future“?

One thing is for sure, the fact that EPA marched in and pushed Patriot Coal to cut the stream impacts in half — and still mine almost all of its coal — at the Hobet 45 mountaintop removal mine sure showed the WVDEP and the Army Corps of Engineers haven’t done their jobs in seeing that environmental effects of mining are minimized. Maybe Randy and his staff don’t want to see that happen again, and are going to really take on the job of changing things

As Randy Huffman told me:

I think that’s the change in direction everyone is going to have to make to meet the downstream water quality requirements. I don’t see any choice but to reduce the impacts.

18 Responses to “WVDEP fill policy: Game changer or more of the same?”

  1. […] Blogs @ The Charleston Gazette – » WVDEP fill policy: Game changer or more of the same? blogs.wvgazette.com/coaltattoo/2010/01/06/wvdep-fill-policy-game-changer-or-more-of-the-same – view page – cached We’re breaking the story in the Gazette print edition about a new West Virginia Department of Environmental Protection policy that essentially halts — temporarily at least — review by WVDEP of new surface mining applications that propose valley fills. […]

  2. Clem Guttata says:

    This is big news. And, yet, it begs even more questions.

    Sec. Huffman still hasn’t filled in the details–what are the negative consequences of MTR that the WV DEP has identified?

    After his staff clarified his Congressional testimony for him, he never did address that question.


    As more background: there were multiple inaccuracies in his Congressional testimony — http://www.wvablue.com/diary/4925/will-wva-dep-sec-huffman-amend-his-congressional-testimony — in addition to what his own staff pointed out: http://blogs.wvgazette.com/coaltattoo/2009/08/21/wvdep-dissent-biologist-says-huffman-wrong-on-mtr/

  3. Watcher says:

    Isn’t this pretty much what everyone in the environmental community wants? It seems Mr Huffman is capitulating and giving over control to the federal e p a. You should be happy. I’ve heard it over and over that the wvdep is not performing their job. Well now the e p a will have to face the same scrutiny.

  4. rhmooney3 says:

    So what will the WVDEP staff be doing?

    Will OSM pay them (50 percent funding) for not reviewing those permits?

    This is all a bogus folly.

    In 1981, the National Research Council published a 207 page report:
    Disposal of excess spoil from coal mining and the Surface Mining Control and Reclamation Act of 1977
    a study of regulatory requirements, engineering practices, and environmental protection objectives

    Spoil handling is the principal function of any mining. The cheaper it’s done makes more money.

    Placing spoil outside of the mined area is a given — how much and where its placed is the issue.

    OSM(RE) has done reports and reports on it.

    Ken Ward and the Charleston Gazette have written about it for decades.

    Others have written about it:



  5. Clem Guttata says:

    The more I think about this, the more I think it is just political posturing. I’ve heard that Gov. Manchin has his long-asked for meeting with President Obama at least tentatively set for next Tuesday, Jan. 12.

    I’m really not sure what Manchin thinks this move will accomplish for an eventual meeting, but I have to think the two things are related.

  6. Thomas Rodd says:

    Bob Mooney, for those of us who don’t have time to go to many links, if you have time to do so, you would do a great service by summarizing what you think is the key information and “takeaway” message of the reports and sources you are citing to — about spoil placement, etc. I appreciate your posting on this important issue. Thanks.

  7. Judy Bonds says:

    I think that I will reserve my “elation” until we can actually see exactly what Mr. Huffman actually does. In our experience with regulatory agencies, we have learned that the assurances and words are rarely followed up with actual deeds and enforcement. I agree with Clem, this announcement seems like “posturing”. We will certainly pay close attention and hope the DEP is truly sincere in actually doing it’s job of protecting the environment.

  8. Thomas Rodd says:

    Here’s a couple of paragraphs from one of Bob Mooney’s links, quoting what appears to be a Kentucky Resources Council press release announcing new regs in Ky. that will limit valley fills substantially:

    “On December 16, 2009, the Kentucky Department of Narural Resources issued Reclamation Advisory Memorandum #145, incorporating the Fill Placement Optimization Process document, and encouraging the utilization of the protocol, in recognition that the Corps of Engineers and EPA are utilizing the guidance document and requiring all pending applications for 404 authorization to utilize this objective, systematic process.

    “KRC is very appreciative of the work that John Morgan, on behalf of KRC, and all of the agency officials and coal representatives, devoted to creating a process document that, for the first time in over twenty-four years, will demand that AOC be achieved and that impacts from fills be minimized and the location optimized to reduce terrestrial and aquatic impacts. As has been the case since 1984, KRC remains committed to reducing the heavy footprint of mining on land and water resources and on communities, as we transition to cleaner energy sources.”

    So – what does this mean with respect to WV? Bueller? Bueller? Anyone?

  9. Ken Ward Jr. says:


    WV has a similar policy, I believe also designed at least in part by John Morgan (who, by the way, worked for Patriot on the Hobet 45 permit).

    I can’t speak to specific differences between Kentucky and West Virginia policies, though — Bob?


  10. […] Agency’s war on coal has forced the West Virginia Department of Environmental Quality to cease processing water quality permits for surface coal mines, thereby jeopardizing thousands of mining jobs. Under President Barack […]

  11. […] by U.S. EPA Administrator Lisa Jackson, in response to WVDEP Secretary Randy Huffman’s new policy on surface mining permits with valley fills: Today’s announcement from West Virginia’s State government is a critical acknowledgement of […]

  12. […] the wake of Wedneday’s announcement by WVDEP Secretary Randy Huffman of a new review of standards for valley fill permits, Kentucky regulators on Thursday made their own very major […]

  13. […] statement less than a week after Clarke’s boss, WVDEP Secretary Randy Huffman announced his agency would essentially stop processing new valley fill permits until it comes up with a more specific — and rigorous — guidance for defining what […]

  14. […] Rick made another interesting point in his story … Because this permit contains a valley fill, it seems unlikely to be a priority for processing under WVDEP Secretary Randy Huffman’s new policy to put such permits on hold. […]

  15. […] was coming. You’ll recall that he was nice enough to do the same thing two months ago, when WVDEP first announced plans to come up with a document to guide enforcement of the narrative st…. Oddly, though, Randy told me today that WVDEP is not putting out a proposed guidance document for […]

  16. […] wasn’t really that long ago that WVDEP Secretary Randy Huffman was sounding like a pretty reasonable guy … Back in January, he announced that his agency was suspending permitting of valley fills and […]

  17. Rose Mooney says:

    Any Mining Operation should have had enough common since to have a well planned operation already in place before going in to strip. All you need is an arial view of the site and study the areas where water ways can be re-routed…I’m sure you can find enough rock to line the stream walls. Work on it as the earth is removed to maintain a steady non disturbance downstream. If you love your earth there should be no arguments and issues. Any strip mine should plan on the least amount of removal disturbance to downstream as possible and put back 10 times what is removed as far as plants, trees and ground cover. If it is wisely planned to begin with plants and wildlife would have a return in 5 years. I’m very upset that there has been no fruit trees planted in these places. We need fruit trees too along with Oak, Beech, Pine, so that the deer aren’t knocking on the doors in the neighborhoods. Make it better than it was when you arrived! I’ve seen places that were stripped that had rather large stands of timber in 10 years. This is a process that should have been in place years ago. The mine has to be responsible in making it better than it was when they went in. This affects communities too. Do you want your homes destroyed by floods? Probably not. Let me tell you what happens when you have to deal with a flood. Everything is displaced! Snakes, Rats, Animals…everything. You have to dig mud out of your basement. You have to replace every single drain around your home. You have to buy a new heat pump, hot water tank, washer and dryer. You have to create a new driveway and yard. You have to scrub and bleach everything. You have to essentially throw away your past. For some people everything they have is gone. You have to struggle to get back what you had. Most people never get back what they had. They never have a desire to even care about their home ever again. I’m one of those people. Material things don’t even matter to me anymore. Just remember that everything is displaced when you move in on nature and break it down. Imagine an Indian sitting on his horse watching you destroy the land. I’m sure that’s disturbing to the spirits on this earth as well. They never harmed the land. They nurished it and food and animals were plenty. There is a connection there with nature and wildlife and us. It’s called the ecosystem. When you disturb this you are taking away from God’s handiwork and his promise to us. This land is here for us to love and enjoy. It’s here for our pleasure to see for those that can see and to learn and cultivate, not to rape and destroy. If one species dies we too shall die. That’s a promise. A mountain lion may kill you or even a bear. Then what is it all worth? If you put back 10 times what you take away you will be blessed because our land will be blessed. I’m really upset that people can’t look beyond their material lives and see whats happening here. We are all going to be sorry one day and I’ll will tell you I told you so. We are all decendants of Noah. Look what he went through so that we could be. He built an ark. He didn’t tear anything down. He built a boat large enough to save the animals and people that believed in God. Remember how he had a love and respect for God? When he sees us doing anything to our earth that takes away the beauty and reason it creates chaos. Strip mining creates chaos and chaos causes destruction and destruction destroys life itself.

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