What West Virginians should really learn from the story of Jim Justice’s big deal with the EPAOctober 4, 2016 by Ken Ward Jr.
Maybe we should just be glad that the U.S. Environmental Protection Agency put out its press release on the water pollution deal with Jim Justice’s companies fairly early on a Friday afternoon, instead of waiting until just before 5 p.m. And oddly, inquiries about this issue were answered far more promptly — and with actual straight answers — than anything else I’ve dealt with the Obama EPA about over the last eight years.
It is a pretty significant story, and it seems hard to imagine it’s not going to quickly become part of the back-and-forth of this year’s gubernatorial campaign. Republican Bill Cole’s people will point to it with statements like this:
@Justiceforwv fined $5m by feds for pollution https://t.co/HgTxYL33iJ. Will he pay the fine or try and stiff taxpayers again? #wvgov #wvpol— Bill Cole WV (@BillColeWV) October 1, 2016
Another example of @Justiceforwv thinking the rules don't apply to him. #wvgov #wvpol https://t.co/L1Z4NpIkJn— Kent Gates (@KentGates) October 1, 2016
Mountain Party candidate Charlotte Pritt’s followers will say the whole thing just shows how Justice is just another coal operator and there’s no difference between Cole and Justice (for those who really are trying to understand if there are differences, former Gazette-Mail political reporter David Gutman gave that story a pretty good shot here).
Just to clear up the facts: The feds didn’t fine Justice $5 million. The fine in this case was $900,000. His companies are required to put up a $4.5 million letter of credit to ensure funding of new pollution control efforts. EPA says in all those efforts will cost $5 million, and Justice has already spent $500,00. So that’s where the $6 million figure in our story comes from. You can read the consent decree here and the EPA complaint here.
It’s fascinating to watch people who are more interested in partisan politics than in environmental protection (or workplace safety compliance) chatter about this particular story on Jim Justice. Where are their cries that the jackbooted thugs from EPA should let little poor ol’ Jim alone? I’m confused — do we want a strong federal enforcement agency to keep coal industry politics from controlling things, or should the feds leave us alone to run things as we see fit?
Readers who follow these things more closely than the career campaign consultants do will know that these kind of settlements between EPA and major coal producers have not been unusual things. EPA has reached deals in recent years with CONSOL Energy (here and here), Arch Coal (here and here) Alpha Natural Resources, and Patriot Coal, among others. And yes, most of the time, the state Department of Environmental Protection takes part with EPA as a co-plaintiff, a move that allows it some say in the litigation and some share of the fine. In this instance, WVDEP could have pocketed maybe $90,000 from the settlement, if the one-half of the fine going to states had been split five ways instead of four.
Going back through those settlements, the only one I see in West Virginia that the WVDEP didn’t take part in was the one back in 2008 with Massey Energy (see original coverage of that here, here, here and here).
It’s fascinating to recall some of the details that came out after that particular EPA deal was announced. For example:
Most of the federal government’s lawsuit was based on self-monitoring pollution reports Massey subsidiaries filed every month with the state Department of Environmental Protection.
But for nearly five years, DEP officials had not been looking at the reports. Inspectors didn’t print them out and read them. Enforcement staffers didn’t study them on computer spreadsheets.
And the problem wasn’t confined to Massey. DEP gave the entire coal industry a pass.
“The cop was clearly asleep for years,” said Pat Parenteau, an environmental law professor at the Vermont Law School. “It is really an indictment of the enforcement program.”
Despite efforts by DEP to improve, the agency is still about a year behind in reviewing the coal industry’s pollution reports, officials said last week. And the agency has not issued any citations or assessed fines for any violations discovered on reports it reviewed for late 2006 and early 2007.
“That doesn’t mean that we won’t,” said Jeff McCormick, the DEP mining division’s assistant director for enforcement. “It just means that we haven’t.”
To further explain:
Like most environmental laws, the federal Clean Water Act relies in large part on industry to regulate itself.
Every month, companies that hold pollution discharge permits must take samples, and analyze the amount of various pollutants in their discharges. The companies then file those reports with state regulators and, sometimes, with the federal government. The reports are called Discharge Monitoring Reports, or DMRs. Experts consider them the most basic tool for enforcing water pollution limits that are meant to keep rivers and streams clean. For a four- to five-year period, though, DEP officials stopped reviewing DMRs filed by coal companies. No one at DEP has been able to explain exactly why.
“For whatever reason, we were not getting it done,” Huffman said. “There was a glitch and they got off track with it”
Huffman said that he found out about the problem when he took over the mining division in May 2005. He said he quickly told staffers to fix the situation. The effort took longer than Huffman had hoped. But by mid-2006, the agency had written new computer programs to review DMRs and spit out letters warning operations when their reports showed violations.
It’s still not clear exactly how many violations DEP missed during the period it did not review DMRs. One effort by DEP to estimate the figure found more than 25,000 violations. Some agency staffers say that the number may be much larger. Others say the figure is smaller.
And then, it turned out, even this big deal with Massey wasn’t enough to change the company’s behavior:
Two years ago, Massey Energy agreed to a record-setting $20 million Clean Water Act settlement with the U.S. Environmental Protection Agency. Federal officials said the deal would force Massey to change the way it does business.
Now, lawyers for the Sierra Club and three other environmental groups say Massey is violating its water pollution discharge limits more often than it did before the EPA settlement. Late last week, the groups threatened to sue Massey over its continuing violations.
This whole business — from that big Massey deal to this new one with Jim Justice’s coal empire — shows again how difficult it is to get the coal-mining industry to simply follow the laws that are already on the books.
The career campaign consultants who want to turn this into some way to dent the Justice gubernatorial campaign are only partly off the mark. If the EPA deal with Southern Coal shows that Jim Justice thinks the rules don’t apply to him — well, it’s because in West Virginia, the rules so seldom really apply to the coal industry at all.
A huge part of what the case against Don Blankenship was about was the fact that rampant violations of mine safety laws (and environmental rules) has become the accepted way for the coal industry to do business in our state. There’s a reason that the major coal lobby groups filed an amicus brief with the 4th Circuit to argue against the application of certain aspects of criminal law to coal mining.
I’ve written before on this blog about what a Justice candidacy would mean for politics in West Virginia:
… It seems impossible to imagine that a gubernatorial election that features Jim Justice as a candidate will involve the sort of real discussion about coal’s past and our future that West Virginians so desperately need. The candidates and the media aren’t up to the task of driving the debate that way … At this rate, we’re going to end up with another election that features nonsensical advertising campaigns over which candidate is more pro-coal and more anti-EPA. If the career campaign consultants have their way, every 2016 race in West Virginia will again be about President Obama, who won’t be on the ballot.
The questions that need asked in the wake of this deal between EPA and Jim Justice are less about whether Justice got special treatment, but whether really the entire mining industry gets special treatment — whether we should accept hundreds (or even thousands) of environmental and workplace safety violations as just the cost of doing business. And not for nothing, but we should also be asking questions about exactly how candidates who proclaim that they would end this way of doing business would do so — and political skills to build the sort of support doing so would require, given the state’s and the Legislature’s overall politics. Changing the way we interact with coal companies, or natural gas operators for that matter, isn’t something that can be done with the wave of some magic wand.
Some candidates are out there trying to turn the question of who has been running West Virginia all these years into some partisan matter. It’s really not. We’ve written about this before as well, here and here. The great historian John A. Williams said it far better than I ever could:
… Most of West Virginia’s hills and mountains overlie deposits of coal. Herein lies another theme of West Virginia history, one in which the sour notes vastly outnumber the sweet. Persons who have studied the impact of coal mining on different societies from Silesia to northern Japan have concluded that coal has been a curse upon the land that yielded it. West Virginia is no exception … In its repetitive cycle of boom and bust, its savage exploitation of men and nature, in its seemingly endless series of disasters, the coal industry has brought grief and hardship to all but a small portion of the people whose lives it touched …
There has been, of course, a tiny elite of smaller producers and middlemen who grew rich from coal exploitation although not as rich as the nonresident owners in whose shadow the local elite worked. For those West Virginians who lived at a remove from the industry, its impact has been more ambiguous.
Certainly coal created opportunities that were not there in the agricultural era, but it also created new problems, especially as the owners of the industry have always tried and have usually succeeded in passing off the external or social costs of coal production to the public at large. Moreover, the industry called into being a larger population than West Virginia’s other economic resources can support so that, even after the great migration of postwar years, the position of the state is like that of an addict.
West Virginia is ‘hooked’ on coal, for better or for worse. In the past, it has generally been for the worst.
… The aesthetic and human values that environmental degradation subverts are difficult to measure. By contrast, the coal industry retains much of its old-time political power in West Virginia, and can readily deploy it to defend immediate and specific economic concerns.