When the federal law was passed in 1977, Congress said regulation rightly rested with the states because of their diverse terrain, climate and other physical conditions. But it does give the federal government the power to intervene if states aren't following their own approved regulatory plans or if they aren't complying with the federal law.
Under Section 733, OSM can temporarily take over some or all of a state's program and bring that state into compliance, but doing so is rare.
OSM says it has used that section of the law 11 times in a total of nine states, including: Oklahoma in 1981, 1983 and 1993; Kansas in 1983; Montana in 1993; Utah in 1995; West Virginia in 2001; Missouri in 2003; Ohio in 2005; and Kentucky in 2012.
Six cases were resolved without a federal takeover of any part of the state programs, the agency said, and partial takeovers occurred in the 1984 Oklahoma case, in Missouri and in Tennessee.
The agency warned Kentucky last year that its bonding requirements for mine-reclamation work were insufficient, and the state has since taken steps toward complying. Ohio is also working toward resolving some issues. Tennessee, meanwhile, relinquished its regulatory authority in 1984.
Nearly half a million acres in West Virginia were under mining permits in December 2012, but the petition says DEP regularly issues or renews mining permits even when operators have uncorrected violations. A DEP attorney acknowledged the practice in a 2009 hearing before the Surface Mine Board, the petition says, saying that strict adherence would effectively shut down the industry.
The petition calls that disregard for the law both shocking and untrue.
"WVDEP's argument demonstrates that it considers its role in implementing SMCRA to be clearing an easy path for mining," the petition says, "even when companies fail to comply with the terms of their permits."
It also says DEP routinely allows companies to act on expired permits, which are supposed to be terminated if mining doesn't begin within three years.
The petition also points to a problem OSM has previously acknowledged - chronic understaffing at DEP, especially in permitting and inspection. With dozens of vacancies, remaining staff members are left with "unreasonable workloads," including responsibility for far more acreage than their counterparts in other states.
West Virginia also fails to conduct monthly unannounced inspections of mine sites required by law, meaning "real harm on the ground" is going unchecked, the petition says. Inspectors have failed to make the number of required inspections for seven years in a row, the groups say, and the DEP isn't sufficiently inspecting coal slurry dams, either.
The complaints accuses DEP of failing to: levy fines that are large enough to deter future violations; set appropriate water-quality standards, including appropriate limits on selenium and electrical conductivity; enforce federal standards for reclaiming former mine sites; and use proper modeling in developing stormwater runoff agreements for mine operators.
The petition blames mining runoff for eight major flood events in southern West Virginia between 2001 and 2009.