The Fayette Tribune, Oak Hill, W.Va.

Local News

July 1, 2013

Groups ask feds to take over DEP

A coalition of 18 organizations says the West Virginia Department of Environmental Protection isn’t adequately enforcing surface mining laws. The problem is serious enough that last week they asked a federal agency to take over the state’s program.

A group of citizens delivered its formal petition to the federal Office of Surface Mining Reclamation and Enforcement (OSMRE) offices in Charleston last Monday and then walked to the governor’s office, which also received a copy. On the way, they held up signs with slogans like “Protect Our Communities” and “35 Years of Non-Enforcement.”

“There are only so many tools we as West Virginia citizens can use to make change, and this is one of them. (...) We are able to petition and have a federal program put into place instead of relying on our state to run a program which is not working,” said Debbie Jarrell, Coal River Valley resident and co-director of Coal River Mountain Watch.

The citizens say their 95-page petition offers concrete evidence of the WVDEP’s problems, including chronic understaffing, inadequate enforcement of the law, and weak penalties for companies that violate it. They also say that the WVDEP overlooks and underutilizes sound scientific practice in their enforcement of the law.

“Throughout our community, time and time again, we have turned to the DEP for help and it’s fallen on deaf ears. Up and down the coalfields, there’s an absence of hope. (...) You have nobody to fight for you. The DEP is a spokesperson for the coal industry and they keep handing out permit after permit after permit,” says Chuck Nelson, a disabled underground coal miner from Glen Daniel.

When asked whether citizens have grounds for their complaint, Christopher Holmes of the OSMRE says the agency “doesn’t know yet.”

“We just received the document this morning and because of its extensive size we have to carefully go through and look at it before we make that determination, and we will,” he said.

“OSM appreciates and takes seriously the concerns of all citizens living and working in coalfield communities. We have discovered that often, the most qualified people to report on a potential problem are the ones who are closest to them, and that is the basis of our system of handling citizen complaints.”

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When OSMRE receives a citizen complaint, it is obligated by law to look into the matter.

The federal agency was created when the Surface Mine Control and Reclamation Act (SMCRA) was signed into law by President Jimmy Carter 26 years ago. The office was charged with helping states create programs to regulate mining on a local level. Coal isn’t mined in the same way everywhere, so the regulations may need to be different from state to state, went the logic.

The WVDEP is the state agency that has taken “primary authority” to regulate coal mining in West Virginia. OSMRE is the federal agency that provides “continuous oversight” of the state-level SMCRA programs.

They must follow at least the minimum standards laid out by SMCRA, but they are free to enact higher standards.

SMCRA gives any citizen the right to petition the OSMRE to evaluate problems with the implementation or enforcement of state programs. The OSMRE can order changes in the state program or step in and take over a failing program.

Such actions are rare, but they do happen. The OSMRE has notified states of its intent to take over a program 11 times in its history, including once in West Virginia in 2001. In three of those instances, they saw through on the threat. The other cases were resolved without takeover or are still under resolution.

Holmes says that the OSMRE isn’t aware of any evidence that such an action is currently needed in West Virginia, but that they will follow the law and investigate the citizens’ concerns.

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The WVDEP says it has not reviewed the petition yet, so it can’t respond to its specifics.

Kathy Cosco of the WVDEP calls West Virginia “a leader in mining regulation,” citing examples like the development of an electronic permitting system, their focus on blasting damage and regulation, and their flood prevention efforts.

“Over the last 30-plus years, great improvements have been made and we anticipate that improvements in the regulation of this practice will continue to be made,” according to Cosco.

One complaint in the petition is that the WVDEP understaffed and therefore cannot provide adequate inspection and oversight.

Current vacancies for the Division of Mining total 16.45, according to Cosco. That’s out of 270 positions in the regulatory program funded by the Office of Surface Mining as a whole.  

“While the agency does struggle from time to time with vacancies because of attrition from retirements and normal turnover, we believe the DEP is adequately staffed for the program,” says Cosco.

The coalition also says the employee workload is too big. They calculate the acreage of complete inspections conducted per inspection and enforcement staff member to be 16,745 acres.

But Cosco says the formula used for the calculation is “an oversimplification” and doesn’t reflect how inspection assignments are made.

“Also, some of the acres an inspector is assigned are often reclaimed or mining has not started, so there are different thresholds for inspection requirements and intensity to take into consideration,” she says.

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“After I worked in the mines and gave my life to them, I want to be able to be in peace in my community,” said Nelson.

But he can’t do that because the rivers he swam in as a child are polluted; because his community is depopulating; and because people are getting sick from the impacts of coal mining.

“Our health, our rivers, and our drinking water is being impacted and the state isn’t helping out any,” he says.

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