From the Western Slope of the Mountains

By Frank Young


No MORE Room For Compromise


The title of this column is stolen – sort of. "No Room For Compromise" was the title of a column article written by West Virginia Highlands Conservancy Director Carroll Jett, and published in the Charleston Gazette in 1991.

Carroll wrote then, "It is obvious to any thinking person that the coal industry has too much political and economic clout to ever be effectively regulated by state government in West Virginia."

Just a couple months ago Charleston attorney, Joe Lovett, said, in a legal notice, that the state’s surface mining regulatory program was "underfunded and overpoliticized."

Carroll’s 1991 article continued, "The federal government has now served notice that it intends to take over enforcement of several aspects of our mine regulatory program, due to the consistent refusal by the state to enforce its own laws. In the midst of this controversy, our current governor (then Caperton) flies off to Pittsburgh to meet with a group of coal operators who are asked to kick in $1,000 each for the privilege."

That was nine years ago. Almost nothing has changed -- not even the rhetoric -- in the past decade. The West Virginia Department of Environmental Protection (WVDEP) staffing, considered unacceptably low by the United States Office of Surface Mining (OSM) a decade ago, has decreased, not increased, over the ensuing years. And the insolvency of the bond pool for post 1977 forfeited surface mined sites has ballooned beyond WVDEP’s ability to calculate.

Now, nearly 10 years later, the United States Office of Surface Mining (OSM) is still serving notices of intent to take over the state’s surface mining regulatory program from WVDEP.

And if anything puts fear into the minds of the governor and the coal industry, it is the serious prospect that someone other than a state agency would actually be operating the surface mining program.

In July, 2000 the Conservancy filed a Notice of Intent (N.O.I.) to sue OSM, asking the court to order OSM to take over the surface mining permitting and enforcement program from WVDEP because of its failure to implement the program at even a minimally acceptable level. In informal response to that Notice, OSM only continues to ask the WVDEP for evaluations of its own delinquencies and gets virtually nothing in meaningful response.

WVHC Past President and mining committee activist John McFerrin, in a paraphrase, says that OSM’s response to our N.O.I. is : "DEP has been a mess for at least ten years. In another ten we may have the problem figured out and be ready to start thinking about a possible solution. We’ll get back to you."

Carroll’s 1991 article continued, "The political influence of the coal industry is pervasive in both major political parties -- always has been. We don’t have the privilege of voter initiative and referendum. In short, a federal takeover of the regulatory process is the only apparent source of protection we have from the coal mining industry, short of armed insurrection............."

But John McFerrin said recently that since the courts frown on the use of guns the only resort is to sue.

I agree, then, with Carroll Jett who concluded, in the 1991 article, "If we buy into some sort of compromise (cop-out, in other words) we will probably get a brief respite of six months or a year, during which the industry will make a half-hearted attempt to play by the rules. But it will soon return to its destructive orgy, running roughshod over the land and people. The pattern of "progress" is predictable. Depleting the resources of one area, operators move on to the next hollow, where the process begins anew under a different corporate name -- leaving behind a legacy of broken hearts, environmental nightmares, and unpaid bills."

Last month the WVHC’s Executive Committee authorized the Conservancy’s attorney to file suit in federal court to require that surface mining permitting and enforcement in West Virginia become a federal government (OSM) responsibility.

OSM obviously doesn't want to actually have the responsibility of running the program. But federal law requires that when the state agency does not operate the surface mining regulatory program in compliance with federal laws, that OSM shall run the program itself.

OSM may or may not perform its’ obligations to our full satisfaction. But certainly it could do no worse than WVDEP.

Considering that the local good ole’ boy political network is easier to keep greased on a local (state) level than on a federal level, OSM could probably do noticeably better.

The more some things change the more they stay the same. There is no MORE room for compromise.