During the recently ended legislature, the most widely discussed bill addressing problems arising from coal mining was Senate Bill 681. Among other things, it changed the blasting law. At a signing ceremony in Logan, Governor Underwood touted it as an indication of the efforts his administration is working to solve problems that arise from blasting at strip mines. A review of the law reveals that it gives little relief to coalfield residents plagued by blasting.

When it comes to controlling the effects of blasting, the heart of the law has always been the requirement that mining companies "prevent" damage to homes, property, water supplies, etc. due to blasting. Unlike in many environmental laws, which modify their substantive requirements with such weasel words as "to the extent economically feasible" or "to the extent practicable", the law on blasting required companies to "prevent" damage. There were no weasel words.

Elsewhere there is a regulation which requires that any Division of Environmental Protection inspector to take enforcement action whenever he observed a violation of the law. Requiring enforcement action is rare in environmental statutes. Most give agencies the authority to take action; at the same time, agencies may exercise some discretion in taking enforcement action. Very few have the mandatory duty to take enforcement action that is found in both the state and federal surface mining statutes and regulations.

The combination of the requirement to "prevent" damage (without any weasel words) and the mandatory enforcement requirement made the law on blasting about as strong as it could possibly be. If the system was broken, it was not because of anything that was wrong with this basic legal requirement.

The old saying is that "if it ain’t broke, don’t fix it." The unstated assumption of this saying is that if it is broken, fix it. The system of protecting people from blasting damage was broken. At the public hearings of the Governor’s Task Force on Mountaintop Removal, person after person talked about how their property had been damaged and how miserable the blasting had made their lives. There have been stories in the newspaper of property damaged by blasting. The Task Force got a bunch of letters asking it to do something to protect people from blasting damage.

There was remarkable consensus on this issue. Except for the coal industry lobbyists, who muttered about "perceived damage" due to blasting, everyone else who spoke before the Task Force on this issue said that we should do something to provide relief to people who were damaged by blasting. Even those who passionately defended the practice of mountaintop removal said that those affected by blasting were entitled to protection.

One option for fixing this problem would be to enforce the existing law. The law requires prevention of damage. Enforcing that law would prevent damage. The second option was to tinker with the law. The legislature picked option two.

The legislature responded to this problem by repealing the section of the statute which requires companies to "prevent" damage due to blasting. At the same time, it created the Office of Explosives and Blasting within the Division of Environmental Protection. It ordered this new office to write regulations which would require companies to "prevent" damage due to blasting. In other words, the legislature’s solution to the problem of blasting damage is requiring the citizens and the Division of Environmental Protection to run around a big circle. When they make it back to the starting point, they will have regulations which require companies to "prevent" damage due to blasting. This was what we had before the legislature "reformed" the law on blasting. While this may not make the law on blasting any worse, it is hard to see this as any improvement.

While the citizens are running around this regulatory circle, there are pitfalls. In the declaration of legislative policy that precedes the section of the statute that creates the new Office of Explosives and Blasting, the legislature declares that it is state policy to "use reasonable means and measures to prevent harm" from blasting. For the first time, weasel words have crept into the law on preventing damage due to blasting.

Unlike the former law, which required prevention of damage, "reasonable" is in the eyes of the beholder. To some, if three of a home’s four walls are still standing after blasting, that’s 75% which is a C in most classrooms and thus reasonable. To others, the only reasonable regulations are those which prevent all damage, as the law required before the legislature "improved" it.

Whose view of what is reasonable prevails depends upon what happens as the Office of Explosives and Blasting makes its new regulations. It may be that the strict requirement of the old statute will be preserved and the law will be no worse than it was before the legislature came to the rescue of those threatened by blasting. It may be that some other view of what is reasonable will prevail. The only thing that is certain is that the law is not going to get any better for having gone through this rulemaking process. The best that citizens can hope for is that, once they have run in this rulemaking circle, they will arrive at the starting point with a law which is no worse than it was when they began.

The new law also makes new laws which duplicate old laws. The new statute prohibits most blasting within three hundred feet of a home or one hundred feet of a cemetery. The law already prohibited all mining within three hundred feet of a home or one hundred feet of a cemetery. While prohibiting blasting within three hundred feet of a home or one hundred feet of a cemetery is not a bad idea, this was already prohibited by the prior law, which still exists, prohibiting mining in those areas. The new law requires companies who blast within one thousand feet of homes to prepare a plan detailing how they will prevent damage to those homes. Even before the changed in 1999 the law already required that companies prevent damage to all homes, including those within one thousand feet of the blasting.

While the new blasting law either leaves the substance of the law the same or makes it a tiny bit worse, the new bill enshrines in law the longtime industry and Division of Environmental Protection attitude that damaging homes is perfectly acceptable so long as the company pays to repair the damage. The law says in unambiguous terms that the duty of the mining companies is to prevent damage. In spite of this, it has long been the industry and DEP attitude that damage is acceptable if (in DEP’s ideal world) the damage is paid for or (in the DEP world as it actually operates) most of the damage is paid for. Law or no law, it long ago surrendered on the idea that damage should be prevented.

This attitude appears most strongly in the new law’s emphasis on the pre-blast survey. Under the law as it was before the 1999 legislature, companies were required to offer a pre-blast survey to all homes within one half mile of the permitted area. This survey was supposed to document the condition of the property before the mining. In theory, at least, this would make it easier to recover for damages to property if the mining company failed in its duty to prevent damage due to blasting.

The change in the law as a result of the bill that passed in 1999 is that, instead of pre-blast surveys within one half mile of the permit area, the surveys will be extended to seven tenths of a mile from the blast site or one half mile of the permit area which ever is greater.

Because none of the blasting takes place right at the edge of the permitted area, in many situations this will make little or no difference. For blasting that takes place toward the interior of the permitted area, seven tenths of a mile from the blasting may be less than five tenths of a mile from the permitted area. In those cases, the new law will make no difference.

In those cases where the blasting area is reasonably close to the edge of the permitted area, some more people will be eligible for a pre-blast survey. Even if this is true, the benefit to citizens is questionable. There is no enforcement policy which ensures that the company pays for damage which is not documented in the pre-blast survey but appears during the blasting. Without some mechanism to make the pre-blast survey a useful tool in recovering for damage due to blasting, it is of no benefit to citizens to extend the area where pre-blast surveys are required.

The bill also sets up a system of arbitration to be administered by the Division of Environmental Protection. Citizens who had been damaged by blasting could submit the claim to the Office of Explosives and Blasting. The office must determine if the claim has merit. If the company (but not the citizen) is dissatisfied with the determination by the Office of Explosives and Blasting, then it may ask for arbitration. Once in arbitration, the claim is to be settled in a "manner which is inexpensive, prompt and fair to all parties." . The determination by the Office of the merit of the claim and the decision of the arbitrator are final. The statute provides no appeal to Circuit Court. Once a citizen asks for a determination then the citizen may not seek relief elsewhere. The remedy before the Office of Explosives and Blasting is exclusive.

A homeowner seeking compensation through this system must depend totally upon the willingness of the Office of Explosives and Blasting to determine that the damage is caused by blasting. Given the reluctance of the Division of Environmental Protection to make such a determination in the past, this is unlikely. If past performance is any guide, the new Office of Explosives and Blasting will follow the pattern of its parent Division of Environmental Protection and never determine that damage was caused by blasting. Homeowners damaged by blasting will have the choice of either ignoring the Division of Environmental Protection and filing suit in Circuit Court as they may now and could have under prior law or presenting their claim to an unsympathetic agency which can deny the claim with no possibility of appeal, arbitration, or any other remedy.

Even were the pre-blast survey and the Office of Explosives and Blasting’s claims

procedure designed to be fair to the homeowner, they would still represent a retreat from the law as it was before the 1999 amendments. Before the 1999 amendments, the emphasis was on preventing damage. Now the law accepts damage as inevitable and sets up systems which, at first glance, appear to make it more likely that companies will have to pay for the damage they cause. That the systems are almost certain to be ineffective in even this modest goal make the new law of even less value to homeowners.

The centerpiece of the new law is the creation of the Office of Explosives and Blasting within the Division of Environmental Protection. Current blasting problems exist because the Division of Environmental Protection is ignoring the part of the law that requires prevention of blasting damage. Current blasting problems exist because the Division of Environmental Protection is ignoring the needs of homeowners. The Office of Explosives and Blasting gives the homeowners a new place to go and be ignored.

On the whole, Senate Bill 681 does not make the law on blasting dramatically worse. Although it rearranges some things and creates a new Office of Explosives and Blasting, it does nothing to make the laws stronger and precious little, if anything, to make it more likely that citizens will get relief. It is certainly no indication that the Underwood administration is committed to providing relief to coalfield citizens plagued by blasting problems.