DEP hasn't written required mining 'mitigation' reports

DEP hasn't written required mining 'mitigation' reports

Aug 8 - Knight Ridder/Tribune Business News - Ken Ward Jr. The Charleston Gazette, W.Va.

For the last five years, state regulators have ignored a legislative mandate to produce an annual report on their mining "mitigation" deals with coal operators.

Under a 1999 law, the state Department of Environmental Protection was required to submit the report to the Legislature by each.

No such reports have ever been filed, state officials confirmed last week.

"It was simply an oversight on our part," said Jessica Greathouse, communications director for DEP Secretary Stephanie Timmermeyer.

Last month, the DEP announced an unusual mitigation deal that allowed a coal company to donate land to the state to offset wetlands that will be damaged by a new strip mine in Grant County.

Federal permits for that project, involving Buffalo Coal Co., have not yet been approved.

Ken Politan, an assistant DEP mining director, said that the arrangement is unusual, but is allowed under state law.

"Very seldom do we get land transactions," said Politan, who for years has overseen DEP mitigation deals with the mining industry.

Under the federal Clean Water Act, coal companies must obtain a "dredge-and-fill" permit from the U.S. Army Corps of Engineers before they can dig up or otherwise damage wetlands.

Before it will approve such permits, the corps requires companies to show that they have minimized wetlands damage and "mitigated" any unavoidable harm to wetlands.

In a related permit process, the state DEP also requires companies to compensate the state for streams or wetlands ruined.

Seven years ago, the mitigation process caused a major stir and helped launch the continuing controversy of mountaintop removal coal mining.

Generally, companies in West Virginia have three options: They can build lakes with public access for fishing, build another stream or wetland to replace the one they bury, or pay the state money.

Currently, the law gives the DEP broad authority to approve "any other mitigation measure acceptable" to the agency.

In 1998, the coal industry pushed for a change in state law that increased the size of streams that operators could bury with mining waste without compensating the state.

The industry proposal also dramatically reduced the amount of monetary compensation operators would have to pay if they choose that option for mitigation.

Lawmakers, pushed by House Speaker Bob Kiss, D-Raleigh, approved the industry bill. Then-Gov. Cecil Underwood signed it, over the objections of his own DEP director, former coal operator Jack Caffrey.

Federal environmental regulators opposed the bill. After it passed, they threatened to hold up approval of new state mining permits because of the changes.

A year later, in 1999, lawmakers repealed the industry bill.

At the same time, they demanded to have some oversight of the DEP mitigation process.

Lawmakers ordered the DEP to submit an annual report to the Joint Committee on Government and Finance on receipts and expenditures of monetary mitigation from the mining industry.

Under the law, the DEP was to provide information on the number of acres reclaimed with mitigation money and "the effectiveness of achieving stream restoration through the payment of the mitigation amounts into the fund in lieu of reclamation" by the coal company.

After The Charleston Gazette asked legislative officials for a copy of the most recent reports, committee staff contacted the DEP to ask about the reports.

"We are working on trying to provide them the information sometime in the next two weeks for the previous fiscal years, and then the next report is due on December 31," Greathouse said last week.

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