Highlands Conservancy goes back to Court
Asks Judge to order OSM crackdown

Charleston Gazette Jan. 3, 2002

By Ken Ward Jr.

A judge was asked Wednesday to order federal regulators to fix more than two dozen deficiencies in West Virginia's program to police strip mines. Lawyers for the West Virginia Highlands Conservancy urged Chief U.S. District Judge Charles H. Haden II to force action by the federal Office of Surface Mining.

In a legal motion, the Highlands Conservancy said that OSM has ignored the state Department of Environmental Protection's failure to beef up numerous strip mine rules and regulations. Some of the regulatory improvements are more than a decade overdue, according to the Highlands Conservancy's motion. Because the state has not acted - and OSM has not forced the state's hand - coal companies in West Virginia can operate under rules that aren't as tough as required by federal law.

In late 2000, Conservancy lawyers noted the problem in a federal court lawsuit that focused on a multimillion-dollar deficit in West Virginia's abandoned strip mine cleanup fund. John W. Barrett, a lawyer with the Appalachian Center for the Economy and the Environment, filed a motion Wednesday on the Highlands Conservancy's behalf asking Haden to act on the matter.

"For years, OSM and DEP have colluded to avoid carrying out their duties under federal law," Barrett wrote. "OSM is so brazen that it even failed to take action when sixteen months ago [the Conservancy] advised OSM it would sue the agency for its long-term failures to follow clear, unequivocal federal mandates.

"Nothing short of this Court's intervention will force OSM to perform its nondiscretionary duties under SMCRA," Barrett wrote. Under SMCRA, or the federal Surface Mining Control and Reclamation Act, states may police their own coal industries. OSM is required by the law to make sure states do a good job. Among other things, OSM monitors state mining laws and regulations.

When state requirements are found to not be as stringent as they should be, OSM requires states to submit "program amendments" to strengthen them. But in West Virginia, the state has a record of ignoring OSM demands for program amendments. OSM seldom does anything about the state's inaction.

In a previous ruling on the reclamation bond issue, Haden wrote that DEP and OSM inaction had created "a climate of lawlessness, which creates a pervasive impression that continued disregard for federal law and statutory requirements goes unpunished, or possibly unnoticed. "Agency warnings have no more effect than a wink and a nod, a deadline is just an arbitrary date on the calendar and, once passed, not to be mentioned again," the judge wrote.

In his motion, Barrett listed a variety of overdue required program amendments. Among other things, the amendments concerned flood control, blasting limitations, replacement of residential water supplies damaged by mining, and post-mining land uses. Barrett asked Haden to order OSM to hold a public hearing on the overdue amendments, and begin proceedings to revoke the state's authority to regulate mining within its borders. "OSM can offer nothing but its tired claim that it is regulating a complex field," Barrett wrote. "Congress contemplated the complexities of surface mining regulation when it enacted SMCRA and imposed strict timelines for OSM to respond to state inaction and intransigence. "In light of OSM's remarkable lack of will to comply with obligations imposed upon it by its own regulations, the Court should place OSM on a strict timetable to achieve compliance."