I had the pleasure of attending part of WVDEP’s Office of Abandoned Mine Lands Reclamation’s annual staff training event at the end of January. Director Rob Rice invited me to make a presentation to his team, and David Petry, our Program Manager, was able to attend as well. The event conveniently followed Preston County Day at the Legislature, but before I made the trip east over I-64 to the MSHA training facility in Beaver, I stopped by the Clay Center for the Arts and Sciences. Kingwood native Nathan Jones works for the Clay Center and encouraged me to visit after spotting me in the Capitol during lunch. The center’s exhibits are ever-evolving; Water Works and the Maier Foundation Music Studio will turn anyone into a giggly kid.  The hands-on fun proved to be just what I needed after a long day at the Capitol.  Once I arrived in Beaver, I was pleasantly surprised to find more play happening at the training center—DEP staff were engaged in a pretty intense game of basketball.  I didn’t have gym clothes so I stood on the sideline in my dress and boots as a spectator. I’m not sure whose team won, but next year I know I want John Knight and Sheila Vulkovich on my team. I always felt Rob was a good manager and confident leader, and having this opportunity to interact with the AML crew in a more casual atmosphere only reinforced that notion.

It was not lost on me that David and I were the only non-agency employees in attendance.  Also, I’ll admit that the given title of my presentation, “Thoughts on AML from Outside the Agency,” was unique and a little intimidating.  I don’t sweat most speeches, but I felt I owed it to these people to honor their work, while also voicing FOC’s concerns around policy interpretation and proposed DEP rule changes.  AML working more closely with the Office of Special Reclamation as well as the reorganization of WVDEP (which we believe is a very good thing), I also took the opportunity to reinforce FOC’s position and concerns surrounding in-stream versus at-source water treatment in Muddy Creek.  

Deputy Director Mike Sheehan reported that the long-anticipated T&T treatment system, on Rt. 26 outside Albright, went active in late December. The multi-million dollar system is currently treating water from the old T&T site as well as water from “Ruthbell #3”/Preston Energy UO-235, which is no longer flowing completely untreated into Muddy Creek. Sheehan also shared that DEP received their final approval from EPA on the variance to water quality standards they requested on Fickey Run, Glade Run, and Martin Creek.  Understandably, FOC still has some heartburn over the variance method, as we believe circumventing the Clean Water Act and drastically lowering pollution limits for this entire watershed is a bad precedent to set.  

However, looking downstream, FOC has two more pressing concerns which I shared with the group. First, maintaining consistent treatment is necessary to realize full restoration of aquatic communities in lower Muddy Creek. Stream bugs and fish need clean water all the time. This will become increasingly more important as macroinvertebrates and fish return to the creek. One mishandled high water flush or a malfunction in technology (as seen on the Blackwater River in 2014) could wipe out progress. The second concern is rooted in the intention of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), which was to ensure that each coal company posted a bond sufficient enough to cover the costs of reclamation.  Bonds are not created by throwing darts at a wall – they are supposed to be estimates that ensure total reclamation, including expensive at-source acid mine drainage (AMD) treatment.  The variance to water quality standards allows DEP an alternative approach to at-source AMD treatment. For example, instead of engineering, constructing, and maintaining 10 treatment systems, they are now able to treat in-stream, constructing and maintaining 1 in-stream doser and the collection pipeline to T&T. This also means fewer NPDES-regulated sampling points and the resources needed to collect, analyze, manage, and report data.

Looking at these example figures and applying a 20 year timeframe, one can quickly see the huge cash savings. And don’t forget, in reality, DEP is liable for treatment in perpetuity.

At-Source [10 systems @ $1M capital construction + (10 systems @ $100K/year operations and maintenance for 20 years)] = $30,000,000

In-Stream [1 in-stream doser @ $500K + $1M pipeline construction + ($350K/year operations and maintenance for 20 years)] = $8,500,000

This is great cost-savings, but who is really getting the deal?  The monies collected and dedicated to funding this clean-up program come from the coal industry – the bond pool and a special reclamation tax on active coal mining.

We have heard over and over that the motivation behind this strategy is restoration, and we do believe that DEP staff are committed to full-restoration of lower Muddy Creek, and that this approach will get us much closer than the old way of doing things.  However, considering the work FOC does each day, cleaning up impacts from the under-regulated days of mining in WV, we are suspect that these savings are also a much-needed crutch to the shrinking bond pool, and WV’s coal industry.  We believe this goes against the intention of SMCRA, and that someone should be paying more attention to the differences between at-source treatment and operation and maintenance cost estimates and what is actually being spent.  Because, in the end, the coal industry should be paying the full cost for the damages they have levied on our lands, waters, and people.

Likewise, we are suspect of the rules changes proposed in Senate Bill 163 (“The Bad” in our cover story). Our leaders are working to blur the lines and remove the definition of “completion of reclamation” from WV State Code. They assert its use in code is inconsistent, and therefore, confusing. The definition provides that reclamation is complete only when “all applicable effluent and applicable water quality standards are met.” (38CSR2-2,37).  Unless the agency intends to allow operators to complete reclamation without meeting all applicable effluent standards and limitations, why not just clarify this definition instead of deleting it?

Instead of just getting rid of water quality limits and legal definitions, we should clarify them and reaffirm our commitments to restoring streams and meeting the expectations of both SMCRA and the Clean Water Act.  What the rule changes in SB163 really feel like are an underhanded means to allow for more pollution, less treatment, and to prevent citizen lawsuits under the Clean Water Act.