Coal Tattoo

We broke the story yesterday on Coal Tattoo about the federal Office of Surface Mining Reclamation and Enforcement stepping in to potentially stop the West Virginia Department of Environmental Protection from retroactively granting Alpha Natural Resources an extension of time to start mountaintop removal operation at one of the former Massey Energy permits along the Coal River Valley.

Earlier today, I finally got the chance to talk to WVDEP mining director Tom Clarke about the situation, and Tom told me his agency hasn’t decide yet whether it will appeal the decision of OSM Charleston field office chief Roger Calhoun:

We’re reading the letter and we are looking at our policy and our regulations.

Over on Twitter, Coal River Mountain Watch’s Rob Goodwin — whose work monitoring WVDEP permit actions in the area brought this whole thing to light in the first place — raised an interesting question about the way state officials handled this:

What does this say about objections to the “retroactive”  Spruce decision? WVDEP willing to break the law for coal?

Certainly, the coal industry and its political backers among West Virginia’s elected officials have complained loud and long that it was wrong for the U.S. Environmental Protection Agency to step in and veto a Clean Water Act permit for the Spruce No. 1 Mine after the federal Army Corps of Engineers had already issued the permit. WVDEP officials have joined in such criticism, saying in one letter about the Spruce Mine:

The WVDEP is committed to application of the existing laws, rules and policies to protect the environment … It does not support retroactive, ad hoc departures from existing laws, rules and guidelines. As regulators, operating within the authority of existing rules and laws, such an approach is unsupportable and undermines the considerable efforts over the years by the WVDEP, Corps and USEPA to develop consistent, predictable and fair permittting programs and procedures.

Now, Tom Clarke doesn’t think this is a fair comparison. The Spruce Mine was a permit WVDEP thought was completely within the law and acceptable, he told me. The Corps approved it, and EPA never stepped in at the time to block it, Tom said. The “retroactive” veto by EPA went against these previous approvals, and that was the problem, Tom said. In the case of the Eagle No. 1 permit, Tom said, WVDEP wasn’t going against its previous decisions to approve the permit — it was simply affirming those decisions and, he said, following its own policy regarding extending that permit.

But that’s where the problem is here for WVDEP, with this little policy.  Stick with me here: Federal and state law contain similar provisions (see Section 506 (c) on page 72 of the pdf ) regarding terminating surface mining permits. The federal language says:

A permit shall terminate if the permittee has not commenced the surface coal mining operations covered by such permit within three years of the issuance of the permit: Provided, That the regulatory authority may grant reasonable extensions of time upon a showing that such extensions are necessary by reason of litigation precluding such commencement or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee.

This is important. Congress put the language in there for a reason, as this legislative history lesson reminds us:

To assure that no one will be locked into outdated reclamation requirements because permits are taken out and renewed without operations being undertaken, subsection (c) provides that permits will terminate if the permittee has not begun operations within 3 years of the issuance of the permit unless otherwise provided in the permit.

Years ago, WVDEP adopted language similar to the federal statute. That language was approved by OSM as part of the required federal oversight of the state’s surface mining regulatory program.

But in 1993, WVDEP went around this federal oversight, writing its own policy (see page 12 of the pdf) for how it was enforce this part of the state’s regulatory program. Under the policy, WVDEP said it would notify operators in advance of the three-year termination date for any permits where mining had not yet begun, and give those operators the chance to submit a request for an extension.  The policy includes this interesting little tidbit at the end:

There should not be any not started permits which have exceeded more than three years since issuance (or the most recent renewal date). However, if any of these are discovered that have not been notified in accordance with the procedure given above, you should proceed in accordance with the guidelines listed above.

What is this policy if not a loophole to allow coal operators to go back retroactively and get extensions for mining permits that, under the law, terminated?

And in fact, what happened here is that WVDEP never warned Alpha’s Marfork Coal Co. that it was nearing the termination date for this permit. So when Rob Goodwin raised the issue of why the permit had never been terminated, WVDEP invoked that last part of its policy. Agency officials notified Marfork, which then applied for and received a permit extension.

What Roger Calhoun and OSM have done is say the state was wrong, in several ways. First, the WVDEP policy in question was never approved by OSM, so it’s not part of the state’s official surface mining regulatory program. Second, OSM says, the policy is inconsistent with state law and regulations.  What’s more, even if this retroactive policy were legal, OSM questions whether this particular permit qualifies for an extension in the first place (read the 4th bullet point on page 4 of OSM’s letter to Tom Clarke for more on this).

This whole affair reminds me of how WVDEP officials didn’t much care when Massey Energy went ahead with construction of a new coal silo at its Goals Coal Co. site near Marsh Fork Elementary School without having a proper permit for the construction. In that instance, WVDEP simply issued an “after-the-fact” permit to the company (subscription required).

It also reminds me of how WVDEP went for more than five years without bothering to check pollution monitoring reports (subscription required) that coal companies file to see if those companies were violating their water discharge limits in Clean Water Act permits. And if WVDEP wants to talk about how it approved the Spruce Mine, it’s worth remembering then that when the agency hired outside lawyers to defend it in that case, those lawyers realized that the agency’s permitting of mountaintop removal mines was so messed up that they moved quickly to settle most of that case (subscription required).

And one of the more interesting things in this instance is that WVDEP professes to not know how many mining permits might have received similar treatment to this one — or how many permits are currently beyond or even approaching their three-year deadline to begin mining operations. Tom Clarke told me he didn’t know and wasn’t sure if he was going to ask WVDEP database managers to pull that information:

In the universe of a couple of thousand of permits, I’m sure there are one or two others.

If you read the policy WVDEP says it was following in retroactively extending this particular permit (see page 12), it requires agency officials to review all un-started permits two-and-a-half years after they were issued. Then, sometime between 180 days and 90 days prior to the three-year deadline, WVDEP is supposed to notify those operators of the impending termination of their permits. How often does WVDEP not follow these parts of this policy? We don’t know. But comments on this blog indicate that there’s at least one other example that is currently pending a decision before WVDEP.

Obviously, environmental and citizen groups don’t think much of WVDEP as an agency. In my years at the Gazette, I’ve certainly written a lot of stories about things this agency doesn’t do. But I also know that WVDEP staff have an incredibly tough job. Few government agencies get as much scrutiny from the press and the public. And in my experience, WVDEP is made up mostly of people who work hard, want to do a good job and care a lot about their state, its environment and its people.

The whole situation is made worse — not better — by West Virginia political leaders, who want to demonize the federal government, and oppose any role for agencies like OSM and EPA in trying to make sure the coal industry is properly regulated. If they were being more honest, they might admit that the state needs all the help it can get.