Coal Tattoo

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

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.