Obama and mountaintop removal: Fixing OSM(RE), Part 1

March 29, 2009 by Ken Ward Jr.

Who will President Barack Obama pick to run the Department of Interior’s Office of Surface Mining, Reclamation and Enforcement?

That’s a great  question. And while I’m not much on the name game that much of the Beltway media plays early in a new administration, what the heck…if the Louisville Courier-Journal is going to weigh in, I might as well join them.

This is going to be the first in a series of posts about what the Obama administration could do to put the R and the E — Reclamation and Enforcement — back in OSM.

There are two people I’ve most frequently heard mentioned as a possible OSMRE director: Lexington, Ky., lawyer Joe Childers and West Virginia University law professor Pat McGinley.

In an interesting move, the Courier-Journal on Saturday used  an editorial in which it questioned which direction EPA is headed on mountaintop removal coal mining to endorse Childers. The editorial, headlined Mixed Signals,  said last week’s moves by EPA:

…leave the public wondering whether the Obama administration really has awakened the Environmental Protection Agency from its slumber and encouraged EPA to enforce the Clean Water Act, as it applies to the much-abused practice of mountaintop-removal coal mining — and, if so, whether the Corps of Engineers also got the message.

The Courier-Journal transitioned right from that into saying that the real test on mountaintop removal is whether President Obama appoints a strong leader for OSM, the floundering agency that is supposed to enforce the federal strip  mining law.

This is not change we can cheer for, yet,” the paper said of EPA’s somewhat botched announcement  of a crackdown on mountaintop removal. “It will be change we can believe only when the administration chooses a fair but tough administrator to enforce the Surface Mining and Reclamation Act of 1977.

Fair enough. There’s a reason that citizen  groups have in recent years turned to the Clean Water Act, administered by EPA, instead of OSM in trying to curb mountaintop removal. OSM has never  lived up to its broad mandate to protect coalfield communities and the environment.  Just read this report by Public Employees for Environmental Responsibility, or this blueprint for fixing OSM written by longtime Kentucky environmental lawyer Tom FitzGerald.

OSM’s weak history gives citizen groups plenty of reason to want EPA to remain at the forefront of  new efforts to regulate coal ash.  And Congress gave EPA clear authority over certain aspects of surface mining regulation. Still, a strong OSM could go a long way to helping with the myriad of problems facing citizens in coalfield communities.

As the Courier-Journal properly points out, there are many reasons to like Childers as a candidate for OSM:

Mr. Childers has a distinguished 30-year record of advocacy on
behalf of coalfield citizens who have been abused and exploited by the
mining industry. He helped lead the legal team that fought the broad
form deed, and forced mining interests to pay their fair share of
property taxes in coalfield counties. He has worked tirelessly on
behalf of coalfield residents whose water has been destroyed by mining,
and has worked to limit the damage of blasting on surrounding
properties. He knows these issues literally from the ground up.He
has earned the respect, if not the affection, of industry
representatives. Indeed, he was just confirmed by the GOP-controlled
Kentucky Senate as a member of the state’s Mine Safety Review
Commission. He is practical and incorruptible, and he has both the
brains and the backbone to revitalize a federal agency that has
suffered from years of neglect and cozy relationships with those it is
supposed to regulate and restrain.

But McGinley’s credentials  for the job are every bit as strong, given his decades of work representing coalfield residents fighting mining companies and his long record of scholarly work on those issues as well. One of his recent works, From Pick and Shovel to Mountaintop Removal, is a must read. (Full disclosure: Pat and his wife and frequent co-counsel, Suzanne Weise, and Pat’s son Sean McGinley have represented me and the Gazette many times on public records litigation and other matters).

And while Childers has gotten endorsements from citizen groups in Kentucky and a few other coalfield states, McGinley has the backing of environmental groups in West Virginia. Also, McGinley received some support from the United Mine Workers union, and an early endorsement  from the group Public Employees for Environmental Responsibility:

Patrick has 35 years of experience with the administration and enforcement of laws relating to coal mine health and safety and coal mining and reclamation. He is the grandson of a coal miner who suffered from black lung disease and served as a Special Assistant Attorney General, Commonwealth of Pennsylvania, on the “Environmental Strike Force” enforced mine safety and anti-pollution laws. Today he is a law professor at West Virginia University College of Law.

The conventional wisdom right now is that Childers might have the upper hand, given that he’s being promoted for the job by FitzGerald, who is tight with Jim Zoia, the top aide to House Natural Resources Chairman Nick J. Rahall,  D-W.Va. While Rahall isn’t a favorite among coalfield citizen groups in Appalachia because of his support for mountaintop removal, Rahall — who was on the conference committee that wrote the final version of SMCRA — is among the few in Congress who have ever paid much attention to OSMRE.

Another piece to the puzzle is that the OSMRE appointment is connected to the appointment of an assistant Labor Secretary to run the Mine Safety and Health Administration. When Bill Clinton appointed Davitt McAteer to run MSHA, the coal industry was none too happy, and the subsequent nomination of mining industry lawyer Bob Uram to run OSMRE was seen as a move to placate the mine operators. Uram, of course, subsequently did just about everything he could to dismantle the agency. (McAteer and former UMW safety director Joe Main are seen by most folks as top contenders for the MSHA job in the Obama administration).

In The Huffington Post, Jeff Biggers recently promoted longtime mining engineer and whistleblower Jack Spadaro for a  high-ranking position at either OSMRE or MSHA.  A director’s job doesn’t seem like quite the right fit for Jack, but it sure would be interesting to see him conducting special investigations or otherwise overseeing enforcement of engineering rules at either agency.

Another factor that played into Uram’s appointment at the start of the Clinton administration was that environmental groups in the coalfields couldn’t seem to unite behind one candidate. Some folks wanted McGinley. Others wanted Bruce Boyens.  And, there were members of West Virginia’s congressional delegation pushing Zoia for the job. Things unfortunately got kind of ugly, with personal attacks flying back and forth, sometimes behind the scenes and sometimes not so much.

I’ve talked to both Childers and McGinley about the OSMRE job. Both have nice things to say about the other, and say the other guy would be a good person for the post.

And most longtime coalfield environmentalists I’ve talked to say the last thing they want this time around is for the search to go on too long, and get too controversial, so that Obama punts and just puts somebody in there that the coal industry can live with.

8 Responses to “Obama and mountaintop removal: Fixing OSM(RE), Part 1”

  1. amy says:

    Before the primary Outside magazine ran an article asking all of the proposed candidates what their energy policy would be (a question ironically left out of early debates, hmmm), I knew then there was not a candidate I could vote for. Nearly all spoke of the oxymorons “clean coal” or “safe” nuclear energy.
    How can we have so little foresight? As wasteful and obese Americans our answer is simple, lets be like Sweden and power up our landfills and sewage waste, we certainly have enough of it!
    Growing up on the South Side of Chicago we regularly passed the huge landfill on I-94 and always dozens of torches pushed into the ground burned off the methane to no useful purpose, all the while we could have been harnessing that energy to power the community.

  2. Anonymous says:

    McGinley’s Pick and Shovel Article is an award winner. It was selected in 2004 for publication in the 2004 Land Use and Environmental Law Review as one of the ten best articles of 2004 in environmental law. Kudos to Professor McGinley and the journal that published the article originally — Lewis and Clark Law School’s Environmental Law.

  3. Bob Mooney says:

    OSMre directors: 17 in its 31 years — only 8 were confirmed by Congress http://www.osmre.gov/aboutus/director/formerdir.shtm

    (1995) Also, Clinton greatly slashed OSM’s budget. The limited inspection and enforcement staff was cut by one-third. Six OSM field offices were eliminated. – 30 years later, mine law’s success debated by Ken Ward, Jr., 7/22/07

    May 1996, Senator Bob Dole letter
    http://groups.google.com/group/osmre/web/osmre-be-gone—may-1996

  4. Ken Ward Jr. says:

    The googlegroups site Bob points out is worth checking out.

    But I’d like to encourage Coal Tattoo readers to also offer comments on the future of OSMRE — and who should run the agency — right here on Coal Tattoo. Ken.

  5. Kevin says:

    Ken, you continue to hit on not only important issues but also ones that are timely.

    OSM(RE) would be well served to have either Joe Childers or Pat McGinley as the director. Wouldn’t it be wonderful if one of them were to receive the appointment and then find another high ranking position within OSM(RE) for the other. Lord knows OSM(RE) needs all the good watchdogs they can find in the office.

    As your reporting shows, there has been a systematic scaling back in enforcement for the last 28 years at OSM. It started with Reagan de-funding the agency and since then every administration has helped to remove some of the teeth of this watchdog agency.

    Here’s hoping the groups working on issues important to coalfield residents across the country can pull together for either of these two candidates with as much maturity and grace as they have shown towards each other. We’ve only got so many legs to stand on, we can’t go around shooting our feet off every chance we get.

  6. Nanette says:

    It sounds like McGinley or Childers would be a good choice. I would hope that there could be openings within the agency for both of them. Though from what I have read I would prefer McGinley as head of OSMRE

    Also Davitt McAteer and Jack Spadaro would be great in enforcement. Jack has been to many of our meetings and he is a wonderful man, full of conscience and commitment. I would feel much more at ease with these men in charge. What we have now is so lacking in every aspect of their overseeing jobs that they seem to be literally nonexistent.

  7. Friends in Appalachia–I am originally from E. TN and worked in the Harlan Co. KY coal field. It appears that mountain top removal and valley filling may be a item of the past because of EPA. I now live in IL and with the people of Montgomery Co. IL We are fighting a battle with a coal syndicate with roots in WVA. They have bought their arrogance and so called political power to our state and are proposing to longwall the finest flat prime farm land in the world. Look at our Website to see the mess that Exxon left in Macoupin Co. with their longwall mining. This land is priced at $6,000+ an acre and produces over 160 bu an acre. The coal syndicate is trying every trick, buying off county boards, lying to landowners and not following SMCRA and getting away with it. Our OSM office is without any power despite the pleas of the landowners for help. I do not need to tell everyone that IL is a corrupt state and our Office of Mines and Minerals is corrupt. A old friend of mine from OSM said that he would take over ILOMM (like they did in TN) if he had the staff. So we are doing everything that we can do to stop the longwall destructive method of mining coal in our prime farm land. If the coal syndicate (6 levels of LLC &LLP companies) gets away with continuing to destroy the 300,000 acres of coal resources they now own, the world will loose 48,000,000 bu of corn. PLEASE work with us in IL also as we have tried to include mountain top mining in all our letters to the House and Senate. Thank you.

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