(This article is adapted from one by Paul J. Nyden which appeared in the Charleston Gazette on December 24, 1998)

Efforts made by environmental organizations seem to have paid off in the case of the lawsuit brought by The WVHC and others. West Virginia officials from the Department of Environmental Protection (DEP), who are supposed to be watchdogs for our environment, can no longer hand out mountaintop removal mining permits as freely as they have for years.

A legal agreement in a federal lawsuit, reached late Wednesday afternoon, places new limits on mining operations that strip mountains away to unearth coal from a dozen or more different seams.

Both environmentalists and federal officials called it a "landmark settlement."

W. Michael McCabe, a federal Environmental Protection Agency’s regional director based in Philadelphia, said, "This agreement will change the way mountaintop mining is conducted in West Virginia and every other Appalachian state."

McCabe called it "a very significant step."

Cindy Rank, Mining Committee Chair and past president of the West Virginia Highlands Conservancy, said state DEP enforcement has been "a travesty."

She continued, "Minimum federal standards have been routinely violated for years. The federal Office of Surface Mining, which is supposed to oversee and prevent these problems, has completely dropped the ball. It is time now for major reforms at DEP."

McCabe said, "We have agreed to have a unified federal policy that will coordinate mine permit activities with EPA, the Army Corps of Engineers, the Fish and Wildlife Service, the Office of Surface Mining and the West Virginia DEP.

"We will in fact streamline the permitting process. We will hold these mines to much higher environmental standards in the future," McCabe said.

In recent years, rock and soil removed by mountaintop removal have filled up, and destroyed, more than 1,000 miles of streams in Southern West Virginia alone. Under the new agreement, federal agencies will:

• Prepare a comprehensive environmental impact statement about the entire mountaintop removal process.
• Immediately halt routine approval of all mountaintop removal permits.
• Require complete environmental assessments for all mine permits larger than 250 acres. Many mountaintop removal permits are larger than 1,000 acres.

Norm Steenstra, executive director of the West Virginia Citizen Action Group, called state DEP enforcement "...absolutely inept. There was a lack of desire to enforce the law. There was a complete failure to examine the social, economic and environmental costs of mountaintop removal mining."

Rank said, "The federal government agreed with us that business as usual poses unacceptable environmental risks and cannot continue."

McCabe, in a telephone interview, said, "Our policies were kind of fuzzy, to put it mildly. We have agreed to conduct a comprehensive environmental assessment over the next two years about the impact of mountaintop mining and valley fills....For new mines that will be permitted, there will be higher standards to make sure environmental impacts will be reduced and that environmental damage will be mitigated properly."

Rank and Steenstra both objected that the agreement exempts one major application from the new strict standards -- the Spruce Fork permit application from Arch Coal Inc.

Rank said, "The government has sacrificed the public interest and the citizens in the town of Blair to the economic interests of a single, powerful mining company."

Arch Coal became West Virginia’s top coal producer in June 1996 when it merged the operations of Arch Mineral Corp. and Ashland Coal.

The Spruce Fork mine is located near the Boone - Logan county border. Dal-Tex Mining began that mining complex in the 1980s.

McCabe said the Blair mine was "... a lightning rod for a lot of concerns. But we got significant concessions from Arch Coal. They wanted five valley fills. They agreed to completely eliminate two and significantly reduce the size of two more. They also shrunk the life of the mine from 13 years to five years."

James Weekley, one of the plaintiffs, was upset. "The new policy is likely to help in the future. But it doesn't protect Pigeonroost Hollow, where my family has lived for over 200 years."

The agreement allows Arch to fill up Pigeonroost Hollow with waste rocks from the new mine. [italics added by editor]

McCabe stressed, "Any future mines will have to go through a rigorous permit review." He said, too, that the agreement also requires the state DEP to "work with federal agencies to insure the permitting process works properly."

Lawyers from the U.S. Department of Justice signed the agreement on behalf of federal agencies on Wednesday. Wednesday’s settlement resolves three claims in the lawsuit filed in July by the West Virginia Highlands Conservancy and 10 coalfield citizens. Our lawyers include Charleston lawyer Joseph Lovett and Morgantown lawyers Patrick C. McGinley, Suzanne M. Weise.

Twelve additional claims remain unresolved in the lawsuit pending before U.S. District Judge Charles Haden. Rank said, "The plaintiffs will continue their case against DEP to vindicate the citizens’ rights guaranteed more than 20 years ago when Congress passed the federal Surface Mining Act."

Of course the unconscionable evil called Mountain Top Removal has not been banned outright as yet. This is only a first step. We can only hope that some relief in the near future can be afforded to Blair and Pigeon Hollow.