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This news story originally provided by
The
Charleston Gazette
By Ken Ward Jr.
Staff writer
A Kanawha County judge has ordered the state Surface Mine Board
to comply with a decade-old law that requires it to merge with two
other state environmental panels.
Circuit Judge Jennifer Bailey Walker ruled that the mine board
“has absolutely no excuse” for ignoring the 1994 consolidation law.
In a 10-page decision, Walker criticized mine board Chairman Tom
Michael, who testified that board members had adequate technical and
legal expertise and saw no reason to merge with the other panels.
“This decision is not Mr. Michael’s to make,” Walker wrote. “The
Legislature has made the decision that the boards must consolidate,
and it is not Mr. Michael’s prerogative to reject this statutory
command.”
Walker ruled Tuesday in a case brought by the West Virginia
Council of Trout Unlimited.
John Barrett and Joe Lovett, lawyers for the group, argued that
the mine board’s failure to merge with the Environmental Quality and
Air Quality boards harmed public participation in mine board
activity.
The ruling by Walker fuels more uncertainty about the future of
West Virginia’s three main environmental appeals boards.
In each of the last two years, lawmakers have sought to strip the
EQB of its authority to write state water-quality standards.
Also, the Legislature slashed the EQB’s budget, prompting the
resignation of its longtime technical adviser and attorney.
The board has contracted with Attorney General Darrell McGraw for
part-time legal help.
One of the two lawyers handling that work for McGraw’s office is
Charleston lawyer Wendy Radcliff, a former Department of
Environmental Protection environmental advocate and a state
conservation activist.
Last week, EQB Chairman Ed Snyder told a legislative committee
that the board was close to hiring Rick Herd as its part-time
technical adviser through the end of the year.
Snyder referred to Herd as working for “West Virginia
University,” where Herd is employed by the West Virginia Water
Research Institute.
Snyder did not tell lawmakers that Herd is also a retired
environmental manager from Allegheny Power and a former industry
consultant.
“I probably should have mentioned that,” Snyder said later.
Snyder said Friday that he has asked board lawyers to look into
federal Clean Water Act conflict-of-interest rules to make sure
Herd’s hiring would not be a problem.
Also this week, the board agreed to seek a ruling from the state
Ethics Commission’s Open Meetings Committee on whether a board
committee studying aluminum’s effects on aquatic life can meet in
private and without any public notice.
Walker’s ruling on the mine board case stems from a July 2003
lawsuit based on the 1994 law that reorganized various state
environmental regulatory agencies.
Under state law, the mine board hears appeals of DEP decisions on
mine permits and mining enforcement actions.
Appeals of water and waste decisions by DEP are handled by the
EQB, and DEP air quality decisions by the AQB.
The EQB also writes water-quality standards. By contrast, air
quality and mining rules are written by DEP, not the respective
boards.
As part of the 1994 reorganization, lawmakers required the three
boards to consolidate. “The boards shall share physical facilities,
hearing rooms, technical and support staff and general overhead,”
the law said.
For years, the air and environmental boards worked out of an
office on Charleston’s East End. The mine board shared space in
Nitro with the DEP Division of Mining and Reclamation.
Unlike the air and environmental boards, the mine board has not
had a lawyer or technical adviser.
In her ruling, Walker noted that, at the time she held hearings
on the case, the EQB and the AQB had a full-time lawyer with
experience in environmental law, a full-time technical adviser with
a master’s degree in environmental science, a full-time paralegal
and a full-time administrative secretary.
“By contrast ... the SMB had no technical or legal support staff,
and had but one staff member,” Walker wrote. “The staff member is
not an attorney and has no relevant technical or scientific
training.”
Walker also concluded that the mine board’s “failure to
consolidate has indeed harmed its effectiveness and hindered public
participation.”
“For example, the SMB’s website ... unlike the websites
maintained by the EQB and AQB, did not allow a citizen to obtain
complete copies of board decisions and contained no forms for use by
pro se or other litigants,” she wrote. “It only contained limited
docket information, compared to the EQB and AQB websites, which are
maintained by its staff.”
Walker ordered the mine board to, within 30 days, consolidate its
legal, technical and support personnel with the AQB and the EQB.
Within 45 days, the judge ordered, the mine board must advise the
court of the actions it has taken to comply with the ruling.
Also, Walker ruled that the mine board must pay reasonable legal
fees and costs incurred by Trout Unlimited in the case.
Walker did not immediately dismiss the suit. Instead, she said
that the court would “retain jurisdiction over this action to see
that its orders are appropriately carried out.”
To contact staff writer Ken Ward Jr., use e-mail or call
348-1702.
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