Feds Say WV Dept Of Environmental Protection Illegally Extended MTR Permit

Jun 12, 2012

The West Virginia Dept. of Environmental Protection (WVDEP) broke the law when it extended a Raleigh County surface mining permit on Coal River Mountain, according to the federal Office of Surface Mining (OSM). Both state and federal mining law require mining to begin on a permit within three years of the permit being issued, unless the company applies for and justifies an extension before the three-year limit is reached.  If they do not do so, the permit is null and void.  Marfork Coal Company, a subsidiary of Alpha Natural Resources, obtained the Eagle #2 permit to strip mine 2040 acres on June 6th, 2008.  Marfork failed to begin mining or apply for an extension by June 6th, 2011.

In response to a citizen’s complaint filed by Rob Goodwin, Citizen’s Enforcement Project Director at Coal River Mountain Watch, the WVDEP’s Keith Porterfield advised Marfork to request an extension on January 12, 2012. Marfork did so on January 31, and WVDEP granted the extension on February 9.  The law has no provisions for retroactive extension.

The OSM found that Marfork’s justification was inadequate.  In a June 8 letter to WVDEP’s Mining Director Tom Clarke, OSM’s Charleston Field Office Director Roger Calhoun said, “Even if Marfork Coal Company had applied in a timely manner, its application fails to meet any of the statutory or regulatory criteria for obtaining a permit extension.”

Calhoun concludes, “Furthermore, because WVDEP’s decision in this case clearly exceeds its legal authority under the State’s approved permanent regulatory program, we must find your actions with regard to the extension of Marfork Coal Company Permit No. S-3028-05 to be arbitrary, capricious, and an abuse of discretion.”

“This is just another example of how the DEP is willing to violate the law for the convenience of coal operators. We suspect there may be as many as 50 other permits in the same situation.  It appears the DEP has been violating the law for years,” said Rob Goodwin.  

Marfork Coal Company can re-apply for a permit for the area, but they would have to undergo a new review process-- from the start.  

“I’m glad to hear the news today, but if our state regulators were doing their jobs then these permits would have never been granted in the first place.  The DEP must consider the new science on community health and long term water quality impacts from mountaintop removal and deny the permit if Marfork reapplies,” said Junior Walk, lifelong resident of the Coal River Valley. A list of nineteen peer-reviewed scientific studies on health impacts, with summaries and links to the full reports, is here

“WVDEP clearly overstepped their bounds, and OSM’s Charleston office did the right thing to support laws intended to protect citizens,” said Vernon Haltom, Executive Director of Coal River Mountain Watch. “Now it is up to OSM Regional Director Thomas Shope to do the right thing and uphold Mr. Calhoun’s decision.”  The DEP has until June 18th to appeal the decision to OSM’s Regional Director, Tom Shope, in the Pittsburgh Office.