By Cindy Rank

In June 2013 eighteen state and national public interest groups including, the West Virginia Highlands Conservancy, filed a petition with the federal Office of Surface Mining (OSMRE) claiming that the state of West Virginia failed to meet its mandatory duty to properly regulate coal mining operations and sufficiently protect the environment and communities from the adverse effects of strip mining.

The Surface Mining Control and Reclamation Act of 1977 (SMCRA) provides for  oversight of state regulatory programs by OSMRE to ensure that state programs comply with at least the minimum protections set by the SMCRA.  In addition to annual reviews of specific aspects of state regulatory programs, Section 733 of the Surface Mining Act provides a mechanism to present evidence and petition OSMRE to do additional review – and to take over the administration of any state program that is found to be seriously lacking.

In the recent 733 petition plaintiffs asserted that West Virginia’s chronic failure to enforce the law has resulted in terrible harm to communities and the environment, that the state’s failure was systemic and required federal takeover of the regulatory program. OSMRE has completed its three year review and issued final findings.

Of the 19 original allegations, OSMRE agreed to investigate five specific areas where the agency believed West Virginia’s program needed improvement. The federal review revealed persistent failures to enforce mandatory protections, such as water-quality standards designed to protect people and the environment. But OSMRE rejected the idea that the overall failure of the state program was dire enough to trigger federal takeover, citing West Virginia’s commitment to make substantive improvements in each of the areas under review as compelling reason.

Specific examples of actions West Virginia (via West Virginia Department of Environmental Protection) has promised to take in response to federal investigations resulting from the petition include:

• Requiring proper documentation for storm-water runoff analyses and increasing staffing to improve the quality of these analyses and their on-the-ground effectiveness in preventing flooding of nearby communities.
• Issuing comprehensive guidance and trainings to improve topsoil reclamation in addition to revisiting current permits that do not comply with existing requirements.
• Identifying water quality sampling protocols and increasing frequency of water sampling; committing to issuing notices of violation for releases that exceed National Pollutant Discharge Elimination System effluent limits — releases observed during OSMRE inspections.
• Nearly doubling the water-quality sampling budget to $230,000 and hiring additional inspectors to improve enforcement.
• Committing to improve cumulative hydrologic impact assessment procedures with an emphasis on better defining the cumulative impact area and requiring operators to include more accurate information needed to support the agency’s review; and conducting central review of those impacts.

So, …. taking a deep breath….If all that sounds vaguely familiar to other actions we’ve reported about in the Voice over the past several decades, it’s because it is.  The history of West Virginia’s mining regulatory program has been rife with foot-dragging and delay when it comes to meeting its responsibilities – especially for protecting water resources and the communities that rely on those resources.

It continues to be disappointing that improvements in the mining regulatory program have to be spurred on by citizen lawsuits and petitions to federal mining regulators to nudge the state along, but we’re grateful for this new bit of prodding.

We now must watch carefully to ensure the promises made in response to this petition will lead to real, on-the-ground improvements, and assure that backsliding is held to a minimum.

[The groups on the original petition include Appalachian Catholic Worker; Appalachian Voices; Catholic Committee of Appalachia; the Center for Biological Diversity; Center for Health, Environment & Justice; Christians for the Mountains; Coal River Mountain Watch; Earthjustice; Keeper of the Mountains Foundation; League Of Women Voters of West Virginia; Mountain Health and Heritage Association; National Wildlife Federation; Ohio Valley Environmental Coalition; Sierra Club; West Virginia Citizen Action; West Virginia Environmental Council; West Virginia Highlands Conservancy; and West Virginia Rivers Coalition.]