W.Va. Desperate for Sensible Enforcement of Mining Laws

Charleston Gazette
Op-Ed: Dave Callaghan
12 December 2009


A state vista from a recent federal GAO report shows mountaintop removal sites and greener areas of reclamation. - Courtesy photo

Having been a part of the West Virginia coal mining regulatory process for a period spanning 43 years, I offer a political and historical perspective on the current debate surrounding mountaintop mining.


Dave Callaghan

Having been a part of the West Virginia coal mining regulatory process for a period spanning 43 years, I offer a political and historical perspective on the current debate surrounding mountaintop mining. A select few of West Virginia's political leaders have put the long-term interests of the public and state above industry clamor for easy permits and lax enforcement.

In an address to the state Legislature in 1967, Gov. Hulett Smith declared that "the rape of West Virginia has occurred" and called for strong strip-mining reforms. I was an assistant to Gov. Smith at that time and served as chairman of his Citizens Task Force on Surface Mining, consisting of a cross-section of West Virginians, including Ned Chilton, editor and publisher of the Gazette. In the late 1960s, there was a significant movement in the Legislature to outlaw strip-mining completely.

The result was passage of a strong law to give authority to the Department of Natural Resources to closely govern the practice.

The prevailing mining practice at that time was "contour mining" which followed the coal seam around the sides of mountains, excavating the coal seam. The methodology was known as "shoot and shove." The overburden was broken up by explosive charges and shoved over the side of the mountain with bulldozers. The result was the creation of miles of ugly high walls, but more importantly, the steep outslopes were covered with overburden which was promptly deposited in streambeds after every precipitation event. The result was environmentally devastating to aquatic resources and stream quality.

While Gov. Smith's 1967 law provided strong authority to shut down noncompliant mining operations, a method had not been devised to prevent the creation of highwalls and the stabilization of overburden on steep slopes. With the problem still unresolved, Jay Rockefeller ran for governor in 1972 on a platform of the abolition of surface mining. By taking such a position, he was defeated by the political onslaught of the mining industry. But his candidacy put the industry on notice that reforms were essential.

In the mid-1970s, the Department of Natural Resources devised a solution: no permits would be issued which provided for the "downslope placement" of overburden material and all highwalls would be eliminated by backfilling to original contour. The following year, that requirement was written into law by the state Legislature. The "haulback" method of mining was codified, and was later copied into the federal Surface Mining Act of 1977. The mountaintop mining method required small "constructed valley fills" whereby overburden material was hauled down into valleys and compacted in four-foot lifts with attached drainage systems to control sediment - all of which minimized the impact on aquatic resources. These requirements were very close to those required in the construction of interstate highways. Surface mining at that time comprised about 20 percent of the state coal production.

 In 1976, newly-elected Gov. Jay Rockefeller's direction to his state regulatory agency was to maintain a strong and balanced program to mine coal and protect the environment. West Virginia was one of the first states to attain "primacy" under the Federal Act, meaning that the State demonstrated its ability to primarily enforce the federal laws - which it precariously retains today.

The Federal Surface Mining Act of 1977 was, with respect to mountaintop mining (valley fills), a step backwards. The Act allowed "durable rock" "end dump" fills which have now become a return to the old "shoot and shove" method of the 1960s, wherein excess overburden is merely dumped into the valley below, burying all in its path, including streams.

In 1985, The Moore administration removed regulatory authority from the Department of Natural Resources at the behest of the coal industry, and created the notorious and failed Department of Energy. This happened while the industry was gearing up for mountaintop mining using ever larger equipment, including draglines, large rock trucks and ever bigger tractors. In 1991, with the threat of a federal takeover of West Virginia's mining program and the demonstrated need for a comprehensive environmental regulatory program, Gov. Gaston Caperton stepped forward and proposed, and the Legislature created, the West Virginia Division of Environmental Protection and provided the funding to bring the agency up to the strength necessary for an effective regulatory program.

During the Caperton administration, the DEP imposed a new "mitigation" (compensation) program on the industry, whereby the operator could either "create" water resources by constructing recreational lakes or pay into a mitigation fund so that the agency could undertake the same goals. The payments were based on the amount of disturbed acreage within a given watershed and the amount of streams lost. In other words, the operators could pay for the loss of water resources caused by their valley fills. The U.S. Environmental Protection Agency, the federal regulatory agency charged with administering the Clean Water Act, approved of this plan.

Mitigation is an often-used tool of the U.S. EPA in protecting water resources under the Clean Water Act when the loss of resources is unavoidable and where no practical alternative exists.

Although the industry was strongly opposed to the program (based on cost), they were repeatedly warned that without this program, valley fills were illegal under the U.S. Clean Water Act. The Legislature overruled the industry and sustained the mitigation program through the years of the Caperton administration.

After Cecil Underwood's election in 1996, at the behest of the coal industry, the mitigation program was promptly gutted by the state Legislature.

Three federal judges in West Virginia have found the present day valley fill activities to be unlawful - one a conservative Republican. Judge Charles Haden declared these fills unlawful under the Clean Water Act. The Clean Water Act of 1972 in its opening statement, Section 101, sets the goal of restoring and maintaining the chemical, physical and biological integrity of the nation's waters and eliminating the discharge of pollutants into the nation's water supply. Judge Haden concluded that to except the discharge of valley fill pollutants makes no sense. In his decision of May 8, 2002, he stated "This onerously absurd exception would turn the Clean Water Act on its head and use it to authorize polluting and destroying the nation's waters for no reason but cheap waste disposal."

And now comes the difficult part - what to do about mountaintop mining and its attendant valley fills. The solution to the problem will not be acceptable to the industry (no regulatory initiative ever has been) and will not be acceptable to those who espouse the total abolition of mountaintop mining. I present here one formula, and I'm sure there are others, which could help reach an acceptable balance for the state, or as Sen. Byrd described, a "prudent and profitable middle ground:"

1. Strict enforcement of the requirement of the return of mined lands to approximate original contour, as the law now dictates.

2. A strict prohibition of the placement of fill material in any "perennial stream" (a stream which flows during all of the calendar year) and the return to the valley fill requirements of "constructed fills" of the 1970s, which will truly minimize disturbances to the hydrologic balance. The net result would be a drastic reduction of fill size and a corresponding reduction in the loss of aquatic resources.

3. A reasonable mitigation program to pay for any losses of water resources as a result of mining activities. The EPA has stated specifically that present mitigation plans are unacceptable and insufficient.

The application of these requirements would have the effect of drastically reducing the size of today's mammoth surface mines and a corresponding reduction in coal production. It would also have the effect of creating additional offsetting underground mining jobs as production is shifted underground to meet demand.

If reforms such as I have suggested are to be implemented to resolve this stalemate, who will implement them and who will be the catalyst for change? The logical choice for this job is the West Virginia Department of Environmental Protection, the agency designated by both federal and state law to be the prime regulatory authority. But they are rapidly losing the ability to issue valid mining permits that the industry can depend on.

A secondary agent of change could be the Federal Office of Surface Mining, an agency which by federal law has the authority and the means to compel change, with numerous regulatory tools at its command. But this agency has been sleeping for so long that it has forgotten why it was created by the Congress. It presently shows no signs of having any interest in these issues.

And, of course, the state Legislature could, if motivated, simply enact into state law reforms similar to those I have suggested. If they took an interim committee tour to see these modern strip mines, they might get motivated.

So we are left with the EPA - an agency which is ill-equipped to deal with a reasonable resolution of this issue. The regulation of surface mining requires detailed hands-on regulation with technicians trained in blasting, earth moving, drainage control and revegetation. The EPA does not have these tools - they come to the table with only their jurisdiction over the "nation's waters." Leaving this issue to the EPA would likely be a long, uncertain and painful process.

Looking back over the history of surface mine regulation, are Gov. Smith's words as true today as they were 42 years ago, and if so, what are we going to do about it?