Coal Tattoo



Sometimes victories are so rare for the people of the coalfields that it’s tempting to jump on just about anything to try to celebrate some movement forward. At least it seemed that way this last week or so.

Take the announcement on Monday by the Kanawha Forest Coalition, described in the Gazette-Mail by Rick Steelhammer:

A two-year struggle by the Kanawha Forest Coalition to halt a strip mine operating adjacent to Kanawha State Forest has ended in a bittersweet victory for the citizens group, after the West Virginia Department of Environmental Protection ordered a permanent end to mining at the Kanawha Development No. 2 Mine.

Under the terms of a DEP consent order signed late last month after a year of negotiations between the coalition and the permit holder, Keystone Industries of Jacksonville, Florida, “no additional mineral removal activities may occur” on the 413-acre surface mine permit. “Activity is exclusively restricted to actions necessary to achieve phased release of the permit,” including rebuilding sediment ditches that are leaking or that contain acidic material, and mapping the locations of containment areas for selenium-bearing or acidic materials, according to the consent order.

Bittersweet for sure. On the one hand, this situation certainly showed how citizens can play a vital role in enforcement of the federal surface mining law. And how DEP– in this case especially its inspection and enforcement staff — can do right by the citizens, especially if the citizens focus on the science and the law and are honest advocates, playing it straight with the many allies they have inside the agency, and don’t let up.

But the question that can’t be avoided here — not if any lesson is to be learned — is why in the world did the DEP issue this permit in the first place? Citizens opposed the permit. They appealed it. They warned that something about like what ended up happening was likely to happen if DEP pushed forward.

secretary-randy-huffman-portrait_small2Hopefully, DEP Secretary Randy Huffman is asking his staff some hard questions about how the permit review process — not to mention the appeal process (in which sometimes agency lawyers act like they’re defending a murder case, making the litigation far more adversarial than it need be, given that the public is the ultimate client) — was handled in this instance.

DEP staff are human and can make mistakes (like writing congressional testimony that throws environmental justice under the bus or advocating a rule that cuts off important avenues for public involvement, or underestimating public concern  about or forgetting the long history and context of a rulemaking about cancer-causing chemicals in our rivers and streams) that aren’t always the result of politics or agency capture or something like that. Sometimes DEP officials just disagree with citizens, though – and sometimes citizens don’t do as good of a job as they might making their case.

Still, like newspapers or any other organization, sometimes DEP has to step back and review, to see if there’s some larger lesson — like maybe slowing down a little more when citizens raise specific concerns about a specific permit, and being sure that public involvement is more than just going through the motions and that legal defense doesn’t put defending the agency action ahead of being sure the public interest is protected.

Lessons that are hard to learn also came to mind when the Sierra Club and other citizen groups announced they had reached a deal to give the Virginia Conservation Legacy Fund a lot more time to figure out how to fix the Hobet mountaintop removal site pollution problems they agreed to buy from bankrupt Patriot Coal. As with a previous deal with bankrupt Alpha Natural Resources,  the Patriot settlement provides money for some experimental efforts led by top scientists to try to find a way to better clean up the mess mountaintop removal has left behind.

Buried in the Patriot court documents, though, were some scary statements: The noncompliance with Clean Water Act pollution limits “will persist for the foreseeable future” and the settlement will ensure the greatest environmental benefit possible under the circumstances.”

The circumstances, of course, are the totally expected and predictable collapse of the Southern West Virginia coal industry.  Citizen groups and scientists have warned for a long time about the long-term consequences of mountaintop removal, just as they previously warned about the disastrous consequences of mining in acid-producing seams in other parts of West Virginia. For the most part, the industry and its regulators didn’t really listen.

And in this particular instance, citizens have been warning for a long, long time, that someday coal companies — lots of them, big ones — might go bankrupt, and leave huge messes behind, without enough money available for the needed cleanups.  There were some moves in the direction of doing something, but they haven’t proven to be nearly enough.  We’re left to celebrate smart bankruptcy lawyers getting the best deal they can, for DEP and for the public.

Then there was this week’s announcement of some much-needed financial help for coalfield communities suffering through the mining industry downturn.

It was interesting to note that the Tomblin administration’s press office, in putting together its announcement, listed first a $200,000 grant for the governor’s initiative to turn the former Hobet mountaintop removal site into an industrial park.  The governor’s staff put Hobet ahead of multiple projects from citizen efforts that won far more money from the federal government’s Power Plus program.

That’s fine, I guess. He’s the governor and it’s his press release. And it’s early yet in the life of the Hobet initiative, and if it works, it will be huge. But if we really believe so much in the private sector, and in our state’s people — especially its young people — why not promote million-dollar awards to those type of groups instead, especially when there are questions about just how far this Hobet plan is really going to go?

More important than my inside-baseball thoughts on the governor’s press release, though, is understanding what the Hobet money is going to be used for. Here’s what the press release said:

— $200,000 for development of a strategic plan for the Hobet surface mine site in Boone and Lincoln counties.

And here’s what Gov. Tomblin said in a recent op-ed piece:

We recently submitted a technical assistance grant application to the Appalachian Regional Commission through its POWER initiative. If awarded, this money would allow us to develop a detailed economic assessment and strategic plan for the best use of the site — a critical step toward making the land usable for business and industry.

What’s missing here is some explanation of the history and appropriate context to think about the notion of developing the Hobet site. Imagine — just imagine — if the state had complied with the federal surface mining act for all these years. We wouldn’t need some little bit of money from the federal government for a “detailed economic assessment and strategic plan” for the best use of the Hobet site when the mountaintop removal mining was done. The company would have had to do those things first, before it got a permit and was allowed to mine one ton of coal. West Virginia might have had less mountaintop removal — and less environmental damage –but the sites that were mined would be full of businesses, public buildings, all sorts of things that would provide economic and community development for many years.

It’s important now to look back on these things — on permits that might not have been issued, on reclamation bonds and cleanup taxes that could have been much higher, on economic development plans that were never required — as West Virginia struggles to find a path forward. We’re surrounded by political leaders and would-be political leaders who want to talk, talk, talk about how they will rebuild the coal industry, how another boom is coming. In the interest of fostering that, these leaders and would-be leaders are going to (and are already) talking about the desperate need to do away with all these burdensome regulations.

When West Virginians listen to the candidates this fall, and go into the voting booth, they might do us all a favor if they thought about how well that strategy has served us these many years.