Photo from U.S. Office of Surface Mining

Word just in this afternoon about a potentially major decision by the U.S. Office of Surface Mining Reclamation and Enforcement …

OSMRE officials here in Charleston have determined that the West Virginia Department of Environmental Protection was wrong in its decision to retroactively extend a Massey Energy/Alpha Natural Resources mountaintop removal permit along the Coal River Valley in Raleigh County, W.Va. I’ve posted a copy of a letter from OSM Charleston Field Office Director Roger Calhoun to WVDEP mining Director Tom Clarke here.

Essentially, the letter says that OSM is taking this action because WVDEP’s policy to allow such “retroactive” permit extensions or renewals is not part of the state’s federally approved program for regulating West Virginia’s surface coal-mining industry.

In his letter to Clarke, Calhoun concludes that WVDEP’s actions on this permit were “arbitrary, capricious, and an abuse of discretion.” The letter gives WVDEP five days to file an appeal with OSM’s regional director. If Calhoun’s determination ultimately wins out, then OSM could launch a federal inspection and ultimately take action, under the Obama administration’s 2011 policy to get OSM back in the business of more closely examining potential defects in state agency permit decisions.

The particular permit at issue here is for Marfork Coal’s Eagle No. 2 Mine, a more than 2,000-acre operation that has been among the targets of citizen and environmental group campaigns against the mountaintop removal mining along the Coal River area. Now, this permit was apparently issued on June 6, 2008. But mining has yet to begin. Generally, federal and state law requires mining to begin within three years of a permit being issued, or requires the operator to get an extension of that deadline.

If mine operators don’t get an extension, permits are supposed to terminate.  West Virginia law allows WVDEP to “grant reasonable extensions upon a timely showing that such extensions are necessary by reason of litigation precluding such commencement, or threatening substantial economic loss to the permittee, or by reason fo conditions beyond the control and without the fault or negligence of the permittee … “

In this instance, Marfork Coal apparently didn’t ask for an extension, and WVDEP didn’t terminate the permit … Then along came Rob Goodwin of the group Coal River Mountain Watch, with a citizen complaint about WVDEP’s inaction.

But here’s the thing: WVDEP operates under a policy that basically says it will warn mine operators that their three-year deadline to begin mining is coming up, and won’t terminate any permits if it forgets or otherwise fails to do so.  So WVDEP declined to terminate this permit, after discovering it had failed to warn Marfork that the deadline was coming.

The problem now for WVDEP is that OSMRE says this policy was never approved by federal officials and made a part of the state’s formal surface mine regulatory program, and therefore can’t be relied upon by WVDEP … stay tuned to see what WVDEP decides to do about this.