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Va. Threatens to Sue Feds Over Coal Permits

Virginia is threatening to sue the federal government after the Department of the Interior toughened its stance on state mining permits, the New York Times and Greenwire report.

Virginia Attorney General Ken Cuccinelli (R) accused the U.S. Office of Surface Mining, Reclamation and Enforcement (OSM) – a branch of the Interior – of illegal intrusion into state affairs. Recent changes by the Obama administration and OSM Director Joseph Pizarchik allow the OSM more leeway to take permit-level enforcement action, rather than simply reviewing states’ general oversight plans, the Times reports.

“OSM’s role under federal law is not to paternally look over the states’ work,” Cuccinelli wrote to the federal government. “Even though OSM does not have veto power over state permitting decisions, and in fact has absolutely no role in primacy states’ permitting decisions, this new language purports to set up OSM as a Super Regulatory Authority to review and potentially overrule the state [regulatory authority’s] permitting decisions.”

Cuccinelli also said that OSM did not consider states’ concerns when it developed a new rule to protect streams from mining impacts, a change heavily criticised by the industry, the Times said. The attorney general connected OSM’s actions with the Environmental Protection Agency’s strengthening of its own hand in reviewing Appalachian mining projects – for which the mining industry is already suing the government.

Recently the OSM said it was considering action over a West Virginia permit issued to Coal Valley LLC, for the extraction and sale of waste coal from an underground mine formerly operated by Consol Energy. The OSM said that state regulators had failed to write an effective water control and runoff plan, and that this could have contributed to a spill at the site last month.

State regulators have acknowledged that blackwater – pollution from an on-site process that washes soil and rock off of coal – appears to have flowed from a treatment pond into a creek.

“The state didn’t order the operation to cease,” Roger Calhoun, director of OSM’s Charleston, W.Va., field office, said. “It still has no valid plan to control water. The operator needs a better plan, the state needs to approve it.”

West Virginia officials have also said they are unhappy with the OSM’s increased oversight.

“The surface mining act gives exclusive regulatory jurisdiction to primacy states,” Tom Clarke, director of West Virginia’s Division of Mining and Reclamation, said. “We believe their jurisdiction to take enforcement action based on this 10-day enforcement process is limited to violations on the ground by the operator.”

Clarke said his staff has been working with Coal Valley to address problems at the site.

Click here (pdf) to read the OSM letter.

Click here (pdf) to read the Virginia attorney general’s letter.

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