This news story originally provided by The Charleston Gazette

State buffer rule weaker than federal

By Ken Ward Jr.
Staff writer

West Virginia’s rule to block new strip mining operations near schools, churches and homes is weaker than required by federal law, government records show.

State Department of Environmental Protection officials have never adopted a tougher legal standard finalized six years ago by the Clinton administration.

The U.S. Office of Surface Mining has never forced the state to act.

West Virginia continues to use a rule that OSM says is weaker, and makes it easier for coal companies to open new operations that might otherwise be blocked.

Under the latest OSM rule, coal companies can operate within 300 feet of a school only if they were already operating or had made a good-faith effort to obtain all permits by the time the federal strip mine law was passed.

The state rule gives coal operators an additional legal hook. They can operate within that buffer zone if they can show that blocking their mine would “result in an unconstitutional taking” of company property.

The OSM backed off its more stringent, December 1999 “valid existing rights,” or VER, regulation after the National Mining Association filed a lawsuit to challenge the changes.

In its suit, the mining group alleged that the OSM rule would deprive coal operators of their property without proper compensation.

A federal judge has never suspended the OSM rule or issued a final ruling in the case. Both sides are still waiting for a decision.

In November 2003, the OSM told West Virginia and other states it would not enforce the new VER regulation until the mining association’s lawsuit was resolved.

“I don’t think this is unusual,” said Mike Gauldin, an OSM media spokesman in Washington, D.C. “Litigation often brings things to a halt.”

But Walt Morris, an environmental lawyer from Charlottesville, Va., said that the coal industry is avoiding enforcement of the new rule without have to actually win in court.

“What OSM has done here is to give NMA a free ride,” said Morris, who frequently represents coalfield citizens on mining issues.

Joe Lovett, a lawyer with the Appalachian Center for the Economy and the Environment, agreed.

“It’s just one more example of DEP and OSM colluding to allow the coal industry to avoid compliance with the law,” Lovett said.

Over the last month, Southern West Virginia residents, state regulators and coal industry officials have debated the safety of Massey Energy’s Goals Coal preparation plant, loadout and slurry impoundment near Sundial.

Parts of the facility — including two controversial coal silos — are within 300 feet of Raleigh County’s Marsh Fork Elementary School.

Last week, DEP officials revoked permit approval for the second of the two silos.

The DEP said an agency investigation had found that the silo was “permitted based on inaccurate maps and may be outside the legal permit boundary.” Agency officials ordered Massey to start ripping up the silo foundation by Aug. 8 and reclaim the area.

A survey conducted for the DEP found that the original, 168-foot silo — which is already built and was approved in 2003 — is also outside the permit boundary shown on coal company maps.

DEP Secretary Stephanie Timmermeyer said Friday that her agency would not take any actions concerning the original silo.

“We don’t have any plans to revisit that at this time,” she said. Gov. Joe Manchin said that he supports that decision.

Under the 1977 federal Surface Mining Control and Reclamation Act, surface coal mining operations are prohibited within 300 feet of schools, churches and other public buildings. The same buffer zone applies to occupied homes, public parks and cemeteries. The law also prohibits mining in national parks, wildlife refuges and in a variety of other sensitive locations.

Congress also gave coal companies an out. They could get around these protections if their operations existed on Aug. 3, 1977, the date the strip mine law was passed, or if they had “valid existing rights” to operate in the area in question.

Lawmakers never defined VER. For more than 25 years, the OSM has struggled to do so. Every time the agency writes a definition, industry groups or environmentalists — often both — challenge it in court.

Repeatedly, judges have thrown out all or part of the OSM’s definitions.

Most recently, the OSM under the Clinton administration finalized a new VER rule in December 1999.

With this action, the OSM made it harder for companies to show that they had “valid existing rights” to mine within schools, churches and other protected sites.

The Clinton administration rule adopted what the OSM called the “good faith/all permits” test.

Under this test, companies can show that they have valid existing rights if, before the strip mine law was passed, they had made a good-faith effort to obtain all required permits.

In its Dec. 17, 1999, announcement, the OSM said that this test, “is the most environmentally protective, least disruptive of existing regulatory programs, and most consistent with the primary purpose of” the strip mining law.

“Congress enacted that section of the law with the intent of prohibiting new surface coal mining operations on land designated for special protection,” the OSM said.

“At the same time, the ‘good faith/all permits’ VER standard protects the interests of land and mineral owners who had taken concrete steps to obtain approval of surface coal mining operations before the lands came under the protection of SMCRA,” the OSM said.

In adopting this test, the OSM rejected a different standard that would also allow mining operations where companies could show that blocking their mining would amount to an “unconstitutional taking” of their property.

The Fifth Amendment to the U.S. Constitution states, in part, that “private property [shall not] be taken for public use without just compensation.”

In West Virginia, the DEP still allows this “takings” test as part of its valid existing rights definition.

After the OSM toughened its rule, federal officials in August 2000 ordered the DEP to eliminate the takings test.

Four months later, in December 2000, then-DEP chief Michael Castle objected. Castle told the OSM he felt the state’s VER rule with the takings test was “as effective” as the new federal definition. Castle did not elaborate. Then, in November 2003, OSM regional director Brent Wahlquist wrote to the DEP. He told the state there was no need to rewrite the rule, at least not yet.

Wahlquist wrote that “giving ongoing litigation” the OSM had “agreed to suspend all action” on that issue until further notice.

The OSM finalized that decision in an April 2004 Federal Register notice.

“We are not mandating any changes at this time,” the OSM said in that notice.

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