By Frank Young

I write this after a week of whirlwind developments relating to surface mining . By the time our readers see this, last week’s events may be old news.

First, we learned on Monday, July 26^th, that the plaintiffs and defendants in a lawsuit to force compliance with mining laws had all agreed to a settlement on most of the complaints outlined in the lawsuit. (See related stories, this issue). Immediately folks started to think about how the West Virginia Department of Environmental Protection (DEP) would implement the agreement. After all, Director Michael Miano, had consistently said that permits were being issued and mining conducted in full compliance with the law all along.

How could the agency take that position while agreeing to a whole new way of regulating surface mining? The agreement includes redefining "approximate original contour," changing bonding procedures and requirements, changing post mining land use practices, and implementing oversight of permitting and mining operations by an technical review committee independent of the agency.

Only a spokesman for the coal industry said the settlement terms, if implemented, are short of revolutionary. Bill Raney, president of the West Virginia Coal Association, downplayed the significance of the settlement.

"I do think it will bring changes, but I don’t think it’s going to revolutionize the practice," Raney said, adding, "I don’t think there is degradation as a result of mining."

Now, we know that Raney gets paid to say things like that. And he gets paid to see that nothing will "revolutionize the practice" of the coal industry regulating itself.

But by the following day, even Governor Underwood’s spokesperson was admitting the obvious: that it was apparent that there were conflicts with surface mining practices and the law.

Rod Blackstone, the governor’s press secretary, said, "The regulation of mountaintop mining has not been as consistent as it could have been.

"I think there is some recognition within a lot of circles that have been following this debate that what had become accepted practice had deviated from the strict letter of the law," Blackstone said. So much for Underwood’s and Miano’s assertion of innocence.

That’s what we’d been saying all along, publicly and in court. But the Governor and Miano denied it all, up to the end.

Then, on Thursday, July 29^th, another unexpected bombshell. It was announced that DEP Director Miano was leaving the agency! His replacement, Mike Castle, had already been selected, effective the following week.

Then, on Friday, July 30^th, Judge Haden refused to approve the settlement outline as presented. The federal judge wants to see the public comments and wait until the DEP makes the rule changes before giving his blessing to it all. Haden did not reject the settlement; he just wants to see a more complete picture before approving it.

So where will the settlement take us? Former Director Miano would have been in the position of having to develop and implement rules to change a system he defended fiercely. He could have been expected to be a reluctant implementer of the settlement agreement. It remains to be seen how Director Castle will implement it. Castle had a part in helping to develop the new way of regulating mining. He may feel that doing so makes him a stakeholder in its success. Or he may feel that since he had a part in it that he knows best how to handle it and would close his mind on other perspectives. He will, of course, be subject to intense pressure from the coal industry to change as little as possible, except as the industry wants change. And, most importantly, he is Governor Underwood’s appointee.

We’ve known from the beginning of settlement talks that a settlement agreement is only as good as the determination of the parties to follow it and to see that the other parties follow it. The same would be true of a court order. Assuming the court eventually OKs the settlement, it will be a court order. If it’s not being carried out as per the consent decree, we and the other plaintiffs can petition the court for enforcement.

Some of us have intermittent mixed feelings about this settlement. We wonder how would the Judge have ruled had the case gone to trial. That’s OK. Rarely have I done anything of consequence and not had that gnawing question -- "what if........ ?"

Some folks think that the settlement is not a wise path toward resolution of the problems. When Miano was there saying nothing was wrong with continuing business as usual, this view was somewhat understandable. With the new Director, the time to make the needed changes is now, instead of later after the new guard gets comfortable with the old guard’s practices.

Too, it’s important to realize that this is not just some agreement with the coal industry. Assuming Judge Haden approves the settlement as a consent decree, it will be a court order subject to the same sanctions for violations and failure to implement as any other court order.

Indeed, some day it may take a "trial" of sorts to have the court tell the parties what the settlement means, especially if some of the parties decide that the agreement isn’t being followed and ask the court to rule further. But the likelihood of that happening is perhaps less now that Miano has left and a new DEP Director is taking over just as the settlement starts to kick in. And Judge Haden’s determination to see this case through to a detailed conclusion makes an eventual "trial" even less likely.

I"m encouraged.