Big coal and environmentalists in this state remain up in arms about valley fills, with no compromise in sight anytime soon.

Big coal and environmentalists in this state remain up in arms about valley fills, with no compromise in sight anytime soon.

"Coal is not going to be around much longer, and this state and the nation need to make preparations for it now," said Coal River Mountain Watch co-director Vernon Haltom.

The environmental group, along with lead plaintiff Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy, alleges in a lawsuit that the U.S. Army Corps of Engineers overstepped its authority by permitting four southern West Virginia valley fills in direct violation of the Clean Water Act and the national Environmental Protection Act.

That case, won by the plaintiffs in West Virginia southern district court, was heard Sept. 23 at the federal 4th Circuit Court of Appeals.

"This is just the latest in a continuing legal saga. We've been on this trip since about 1996," said Jason Bostic, vice president of the West Virginia Coal Association. Bostic said the environmental groups win in district court, and then the federal appeals court historically had reversed the decision in each case.

He said the cases have been a progression in challenges to the mining industry and have moved on to more specific cases within mining.

"OVEC and the rest of these people are unrelenting to use the judicial branch and the courts to overturn the will of Congress," he said.

He said Congress amended both the Clean Water Act and Environmental Protection Act through the years but still allows for valley fills and mining. He said there must be Section 404 permits and valley fills if there is coal mining. Section 404 is the portion of the Clean Water Act that regulates valley fill permitting.

Haltom said the environmental groups have to fight many valley fills one by one, and "we'd like to see the valley fills eliminated, and, as our group, we'd like to see mountaintop removal eliminated. We don't need any more flat land."

A new regional coalition, the Alliance for Appalachia, comprised of 13 organizations in Tennessee, Kentucky, West Virginia and Virginia, has been formed to help raise the volume and amplify the movement against mountaintop removal, said Janet Keating, OVEC's executive director.

Bostic said the coal association has maintained all along that the Corps of Engineers is the right party to administer the 404 program.

"They have a field of experts that look at this stuff, it's very slow, it's very methodical. It takes a long time to get a permit issued," he said.

"For environmental extremists or (Circuit Court) Judge (Robert C.) Chambers to think they can administer any better, then they need to apply for a job at the Corps of Engineers."

Keating said not only coal operators are to blame but also government.

"We need action, and we need bold action from our state government. We're always hearing about how regulated the industry is. Well then why did EPA have to come and fine Massey for 4,500 Clean Water Act violations? Imagine that. We couldn't make this stuff up," she said.

She said the state Department of Environmental Protection has 100 or so vacancies and missed out on $20 million in fines because it is not putting enough money into enforcing regulations.

DEP spokeswoman Kathy Cosco said in an email that while there are about 100 vacancies, the agency is in the process of filling about 60 of those positions.

Cosco said the DEP generates reports to identify companies with violations.

"There was a computer glitch that resulted in those reports not being generated," she wrote. "However, in the meantime, DEP inspectors were making site visits and taking water samples, and when they found violations, they took enforcement actions under the Surface Mine Act.

Cosco said the DEP selected five Massey operations with the worst compliance records and targeted them with a lawsuit that was settled for $1.4 million in penalites under state law.

"The EPA followed that up with an enforcement action in federal court, under the Federal Clean Water Act for the 4,100 violations mentioned by Ms. Keating. WVDEP enforcement personnel and mining inspectors provided information and documents that aided the EPA in its suit," she said in the email.

"In addition, it was cooperation from WVDEP staff that led to the settlement, including corrective actions to be taken by the mines (and) monetary penalties."

While the environmental groups have focused on mining regulation violations, Keating said now is the time to begin thinking about a transition from fossil fuels to clean, renewable energy.

"There aren't any scientists who don't think we have global warming. I think the consensus is pretty clear around that. I think we can have a much stronger economy and less dependence on foreign oil," she said.

Environmental groups said one place to start the shift to renewables is at Coal River Mountain, where they would like a wind farm to be built.

The wind project would lead to underground mining and more jobs, Haltom said, because it takes fewer people to operate a mountaintop removal site than it does to operate an underground mine. Massey Energy has applied for projects for 6,600 acres, more than 10 square miles, he said. That permit would lower the mountain by more than 500 feet, eliminating commercial wind potential.

"With a wind farm on the surface, you can also do underground mining if you have enough distance between the surface and mine," Haltom said, adding, "The mountain's surface could continue supporting traditional Appalachian culture."

The lawsuits that the environmental groups hope will change the state's energy climate have hobbled the mining industry, Bostic said. He said operators mine coal in the most environmentally friendly way possible.

"They're going to spout off about protecting communities and protecting the environment. There's been large-scale surface mining for 30 years. If we weren't following regulations, we'd be in worse shape," Bostic said.

"The worst possible thing you can do to coalfield communities is to keep workers from earning a wage. And that is a disservice to West Virginia families."

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