By Frank Young

Division of Environmental Perversion

A few years ago the West Virginia Environmental Council publication GREEN had a contest of sorts, suggesting and soliciting spoof names for the state Division of Environmental Protection (DEP). The idea was that the agency didn’t really protect the environment. But rather, it permitted pollution and protected polluting companies, under the permitting system.

Nowhere is this more evident than in the coal mining permitting process. Only those operations that would dare mine without any permits whatsoever see the heavy enforcement arm of the law. Variances for legal requirements relating to mining occur from top to bottom, literally. The approximate original contour (AOC) requirements in federal law are supposed to by enforced by the states that have enforcement primacy (primary enforcement responsibility). Buffer zones along streams are supposed to be enforced by state regulators and permit writers. Both AOC and stream buffer zone rules are routinely ignored by the DEP. The DEP’s personnel do not deny, even admit to this, when pressed. No clear excuses for this perversion of the permitting process are offered.

The same thing happens in other environmental areas. The Federal Clean Water Act has been law for almost three decades. West Virginia has primacy for enforcement here, too. Yet, in settling a suit by the West Virginia Highlands Conservancy and others, the regulators said it will take yet another 10 years to formulate regulations on amounts of pollutants that may be put into streams by point source polluters. Meanwhile, almost anything goes, without meaningful limits. This is simply not a priority with state regulators. What do they think they are supposed to be doing?

And non-point source water pollution is an even more neglected problem. Surface water runoff of contaminants from land is epidemic, particularly in eastern counties of West Virginia. This came about because of the tremendous growth in poultry farming that has taken place there in recent years. But it is growth without the necessary planning and regulations to protect from serious poultry farm pollution.

Again, state regulators permitted an industry to flourish without adequate oversight and foresight. Now that the industry is established, it resists regulations to control its environmental excesses. Through the political network of influence, regulators refuse to recognize the magnitude of the problem, insisting that voluntary practices are adequate. Again, what do the regulators think their job is? Just to protect the status quo?

And with air quality concerns, a similar problem continues. For example, only a couple years ago, West Virginia issued a draft permit for a pulp and paper mill at Apple Grove. But the research behind the permit did not reveal even any estimates of how many birth defects, digestive disorders or other health problems, other than cancers, that might be expected with the emissions resulting under the terms of the draft permit. Had that project come about, a new status quo for that industry would have been established, and then defended as adequate.

So then it is apparent that to call the West Virginia Bureau of Environment and its Division of Environmental Protection and other various environmental boards and protection agencies is a perversion of the concept of protection.

The U.S. Environmental Protection Agency may and does delegate authority to states to enforce federal environmental laws. It does so for a number of reasons. The shear size of the bureaucracy required for efficient enforcement can perhaps be handled better at a state level. And the public’s tolerance of state regulators in green Jeeps is perhaps greater than it would maybe be for hordes of federal enforcement officers running white "U.S. Government - Official" cars up and down local hills and hollows. But part of the "primacy" agreements between federal and state agencies is that states are supposed to enforce the environmental laws at least as strictly as what the federal laws require. Federal agencies can, and sometimes do, withdraw from states the primacy to enforce federal laws because of states’ failure to enforce adequately.

Some of us believe it can be convincingly argued that West Virginia state agencies do not

adequately and effectively enforce the federal laws it is charged with enforcing. The 1977 Surface Mining Control & Reclamation Act (SMCRA) and the 1972 Federal Cleanwater Act, both heralded as long overdue when signed into law by Presidents Carter and Nixon, are corrupted from their intent as currently enforced by West Virginia state agencies.

States may have and enforce environmental laws and regulations more restrictive than federal laws. Many do. In order for a state to keep primacy for enforcement, it is supposed to have enforcement no less stringent than federal law provides. In West Virginia, it can be argued that state primacy results in an even lower enforcement level than federal law provides. The result is virtually unrestricted surface mining activity, leaving the statute’s concepts of maintaining "approximate original contour" requirements a sham.

Likewise, the non-degradation of streams concept, an integral part of the federal Clean Water Act, is a sham as well.

Should the federal government take away primacy for enforcement of United States environmental laws in West Virginia? Surely federal regulators would do no worse than West Virginia state agencies do in enforcement. After stumbling and bumbling for a while, perhaps even a few years, they would probably do better. And apparently industry folks think so, too. Nothing puts fear into the hardened environmental hearts of coal and other devastating and polluting industries like even the remote prospect of having to get their permits from federal agencies.

Dealing with federal agencies would require dealing with different bureaucracies. It would mean different and not so predictable good old boy (and maybe even good old girl) networks. It would mean that polluters and destroyers would have to learn a new way to live. That would probably be good for them, and good for West Virginia.