WASHINGTON, D.C. -
An official with the U.S. Office of Surface Mining Reclamation and Enforcement wrote in a recent letter that the West Virginia Department of Environmental Protection erred in extending a mountaintop removal permit in Raleigh County.
The permit was given to a Massey Energy mine, now owned by Alpha Natural Resources, for the Marfork Coal Eagle No. 2 mine in the Coal River Valley in Raleigh County. In a letter to Tom Clarke, director of the DEP's Division of Mining and Reclamation, Roger Calhoun, OSMRE's local field office, wrote WVDEP did not have authority to grant extend a permit after it had passed its three-year extension.
The permit was originally granted in April 2008, and a citizen complained to the OSM that the company had failed to initiate mining operations within three years of permit issuance. The company issued a TDN, or ten-day notice, a method the agency uses to notify states of a potential violation of the federally approved regulatory program.
"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," Calhoun wrote.
Coal River Mountain Watch sent an action alert in April urging citizens to contact Calhoun to support termination of the permit.
"Mountaintop removal mining on Coal River Mountain would devastate the surrounding communities, who would lose their access to the mountain and suffer the effects of blasting, increased flooding risk, and water contamination," a sample letter to Calhoun posted on an activist website stated. "Alpha is in clear violation of the law by holding onto this permit for so long. If they plan to mine Coal River Mountain, they should be required to re-apply for their permit, considering all of the new scientific data that has emerged in the past several years regarding the impacts of mountaintop removal mining on watersheds and community health."
The DEP has five days from receipt of the letter before the "OSM will conduct a federal inspection and take any enforcement action it deems appropriate."
The specific violation, the letter states, is that a portion of West Virginia code provides for a termination of a permit that has not been acted upon within three years of issuance. Reason of litigation, threatening of substantial economic loss or conditions beyond control of the permittee may call for an extension.
According to the letter, OSM found no such reason for an extension, and Marfork Coal had never applied for an extension. The letter said Rob Goodwin of Coal River Mountain Watch filed a citizen complaint to the DEP about Marfork's inaction on Jan. 9 of this year.
The reason for not terminating the permit, the DEP claimed in a response to Goodwin on Jan. 17, was that it had not notified Marfork of the coming termination. The DEP said that because state policy required the notification, they would provide notification to Marfork.
The policy, dated January 1993, was not approved or submitted to OSM for approval of the state's regulatory program.
According to the letter from Calhoun, Marfork requested an extension because litigation involving its Clean Water Act 404 permit had delayed mining. Permit transfers required following the acquisition of Massey by Alpha had also complicated mining, the company said.
The DEP then extended the permit to June 6, 2013 and asked the company to update the permit to current regulatory requirements.
Clarke was not immediately available for comment.
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