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This article originally appeared in the The Charleston Gazette

Mine board members asked to recuse themselves

By Ken Ward Jr.
Staff Writer

State Surface Mine Board members with financial ties to the coal industry were urged Wednesday to recuse themselves from a major case before the panel.

The West Virginia Highlands Conservancy asked the board members to voluntarily step down from their challenge of a permit issued to Arch Coal Inc.

Joe Lovett, a lawyer for the group, said that state law prohibits board members from taking part in cases if they have “any financial interest in the outcome.”

Board members did not immediately rule on the motion or discuss it during their public meeting. “We need to think about this for a while,” said board Chairman Tom Michael.

Under state law, at least one of the appointees to the Surface Mine Board must be a person who “by reason of previous vocation, employment or affiliations, can be classed as one capable and experienced in coal mining.”

Another member must have experience in agriculture, another in forestry and a third in engineering. Another member must have experience in water pollution control and another must be “a person with significant experience in the advocacy of environmental protection.” The final board member represents “the general public interest,” according to state law.

Under the law, the board members with expertise in mining, water pollution control, and engineering can get “significant financial compensation from regulated entities” if they disclose those relationships to the board.

However, the law also says that, “any member who has any financial interest in the outcome of a decision of the board shall not vote or act on any matter which shall directly affect the member’s personal interests.”

No board members appear to be employed by Arch Coal or the Arch subsidiary, Coal-Mac Inc., involved in this case, according to biographies posted on the board’s Web site.

But in a written motion, Lovett said that the permit challenge “has raised three specific matters of particular import for the statewide surface mining industry.”

In the case, Lovett seeks to strictly limit valley fills by having a stream buffer zone rule applied to the waste dumps.

The permit challenge also seeks “mandatory testing” by the state Department of Environmental Protection for toxic selenium discharges from strip mining operations. It also seeks “the mandatory reclamation of the state’s topsoil resources from surface mining operations through industry investment in reforestation activities,” the motion said.

“The determination of these three issues will have a substantial economic impact on surface mining operations across the state,” Lovett wrote. “In other words, although this is an appeal of one permit, it raises a challenge to DEP’s permitting practices generally.

He did not identify any board members who he believes have financial ties to the industry.

According to the board’s Web site, board member Randy McMillion is vice president of Riverton Coal. McMillion was appointed in December by Gov. Bob Wise.

Board member Steve Capelli is a self-employed engineer who was formerly senior vice president of Pen Coal Co., according to the Web site.

Board member Michael Hastings is listed as general manger of Benson International, a company that makes and sells large dump trucks and other similar trucks and trailers.

After a break Wednesday, Michael said that Hastings had decided to recuse himself from the case because he had missed previous hearings. The permit challenge was filed in late October, and hearings began in January.

Arch Coal lawyer Bob McLusky said that Lovett should have filed his motion at the start of the hearings months ago.

McLusky also noted that Michael is a former member of the board of the Highlands Conservancy. Michael is on the board of the West Virginia Rivers Coalition, according to that group’s Web site.

Lovett responded that the conflict-of-interest law goes only to “financial interests.”

In his written motion, he said that, “should board members with the personal, pecuniary ties [to the industry] ... fail to disqualify themselves from this appeal, the authority of the Surface Mine Board would be seriously undermined.

“The confidence of the people of the state of West Virginia (and the confidence of courts reviewing board decisions) in the Surface Mine Board’s ability to issue sound and impartial decisions would be jeopardized.”

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

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