More than a decade ago, federal officials ordered West Virginia regulators to toughen rules meant to prevent runoff or flooding from strip mines. In 1990, US Office of Surface Mining (OSM) officials said the state needed more stringent design rules for certain types of mine ponds. OSM officials also said the state needed rules to require more detailed scrutiny of changes in pond design or construction. Under federal orders, the state Department of Environmental Protection (DEP) was supposed to write the new rules by June 1, 1992.

Today, those stronger rules have still not been written, state and federal records show.

As late as November, DEP officials lobbied OSM to try to avoid rewriting the rules.

Last week, Southern West Virginia residents blamed strip mine runoff for making worse the damage from the July 8 heavy rainstorms. DEP inspectors cited more than a dozen mine sites for flood-related violations. The citations did not involve large-scale coal mine waste impoundments. Instead, operators were cited because much smaller ponds and diversion ditches did not properly contain runoff.

Gov. Bob Wise and various top DEP officials, however, have questioned whether mining contributed to the flooding. Wise has asked for a study and wants to "keep an open mind" on the issue, spokesman Bill Case said.

It is impossible to say if the tougher rules proposed by OSM would have prevented all mining-related flood damage last week. But OSM officials believe the tougher rules would help make sure mine sites control more of their sediment and runoff.

On Friday, Michael O. Callaghan, Gov. Bob Wise’s DEP secretary, declined to comment on OSM’s demand for tougher state mine runoff rules.

Callaghan said that he and his staff were too busy helping with flood cleanup efforts to discuss or debate the need for more stringent regulations.

"I’ll take a look at that," Callaghan said. "But it’s not going to be soon. Right now, we’re dealing with an emergency situation."

Under the 1977 federal Surface Mining Control and Reclamation Act, states are allowed to police their own mining industries. OSM is required to make sure that the states do a good job. Periodically, federal officials review state mining rules, and their enforcement. If state rules are too weak, or aren’t properly enforced, OSM is required to make the states improve. If states don’t comply, OSM is required to take over enforcement of mining rules in those states.

Under federal regulations, mining operations must design sediment ponds, drainage ditches and other water diversions to "provide protection against flooding and resultant damage to life and property." Among other things, federal regulations require that all ponds and other water-retention structures be able to safely withstand a 25-year, 24-hour storm.

In 1990 or before, West Virginia officials wrote different rules to govern different types of ponds. Under the state’s rules, ponds that are built above ground would have to comply with the 25-year storm guidelines. But ponds that are dug into the ground would only have to be able to withstand 10-year, 24-hour storms.

In 1990, OSM officials told the state that its proposal didn’t comply with federal rules. They told the state to rewrite the rules, so that dug-out ponds would have to meet the 25-year storm rules. OSM gave the state a deadline of June 1, 1992.

The deadline came and went. West Virginia officials never rewrote the rule, and OSM never took any action to force the state’s hand.

Ten years before, in 1990, OSM told the state that any changes in the design or construction of sediment control structures must be approved through permit modifications. Permit modifications receive additional regulatory scrutiny. Engineers, hydrologists and permit specialists review them.

In its rules, the state proposed to have many types of design changes reviewed and approved only by field inspectors. OSM opposed the state’s plans, and gave the DEP until June 1 to rewrite its rules. Again, that deadline came and went. The state did nothing, and OSM took no action.

In January, OSM officials published a Federal Register notice concerning a series of state rule changes that DEP wanted OSM to approve.

In that announcement, OSM noted that DEP continued to oppose the two rules changes that OSM had ordered concerning sediment ponds and ditches. OSM accepted public comments on the announcement through Feb. 2. Coal industry officials did not comment on the sediment pond issues.

Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, mentioned them in a letter commenting on the OSM announcement. Rank urged OSM not to exempt West Virginia from the 25-year, 24-hour storm design requirements for sediment ponds and ditches. "OSM may not remove this requirement since it has promulgated a federal regulation requiring these standards to prevent failure, flooding and erosion," Rank wrote. "OSM’s standard has been subject to a public notice and comment process and is necessary to protect communities and the environment from rain storms. Any lesser standard is not as effective as federal law." Rank also urged OSM to force the state to rewrite its rules governing review of design changes. "Again, the state submissions improperly relies on guidance documents and is, in any event, less protective than the federal program," she wrote.

Last year, lawyers for the Conservancy filed a federal court lawsuit to try to force OSM to make DEP rewrite more than 30 state mining rules that OSM found to be too weak. The sediment control and runoff rules are among the regulations noted in the conservancy’s lawsuit. The suit is pending before Chief U.S. District Judge Charles H. Haden II in Charleston.