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Environmental coalition alleges state environmental agency not protecting coalfields

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A new coalition of 18 environmental groups is rallying together with a message highly critical of state environmental regulators in the West Virginia coalfields.

The CARE, or Citizens Action for Real Enforcement, campaign claims that the West Virginia Department of Environmental Protection is "failing to protect its citizens from chronic pollution, environmental degradation, human suffering and costs resulting from inadequate regulation of coal extraction by the state government."

"We have had over 35 years of our government failing to protect us in West Virginia DEP," said Rob Goodwin with Coal River Mountain Watch.

West Virginia Department of Environmental Protection Secretary Randy Huffman said he had received the petition the morning of June 24 and had not yet reviewed the entire document. He said he disagrees with the group's general premise that the enforcement program is failing West Virginia.

"We've had the responsibility for regulating coal mining in this state since coal mining was regulated," Huffman said. "… Prior to that we mined coal for about 100 years without any regulatory controls and given what we had and given the industry that existed when we started regulating in the '70s and '80s compared to what we have now, I think we've made tremendous strides and we're continuing to make progress."

Rallying front of the Charleston office of the federal Office of Surface Mining Reclamation and Enforcement June 24, approximately 20 representatives of the environmental groups rallied to urge federal action on state programs.

"West Virginia has failed to take action to address the systematic problems evidenced by these violations," the petition states. "These failures can no longer be tolerated. After 30 years of failure, it is past time for OSM to assume control of (Surface Mining Control and Reclamation Act) permitting, implementation and enforcement in West Virginia."

Kathy Cosco, a spokeswoman for the DEP, countered the CARE campaign, defending a number of innovations in approximate original contour, flood prevention, hydrologic balance, reforestation of mined lands, protection of Indiana bats, blasting damage, post mine land use and electronic permitting.

"In 1977, when there were little or no surface mining regulation in most states, and Congress developed the Surface Mine Act, its members thought it best for the states to have primary regulatory responsibility of the activity," Cosco said. "Many aspects of the federal regulatory program originated from regulations that already existed in West Virginia's program. 

"We acknowledge the contributions of the legislative process, regulatory leadership and the involvement of citizens that have combined to make West Virginia a leader in mining regulation." 

The CARE campaign is specifically targeting the surface mining of coal in West Virginia.

"A huge portion of southern West Virginia has been permanently scarred by inadequately regulated mining and tens of thousands of additional acres are currently under permit or slated for permitting that would cause widespread additional significant harm to communities and their environment," the petition states. "Unless West Virginia‘s current illegal and ineffective implementation of SMCRA ceases and lawful administration and enforcement of SMCRA occurs, West Virginia‘s land, waters and wildlife will be either lost or permanently scarred and many communities will suffer the adverse economic, social and environmental impacts that SMCRA was specifically designed to prevent."

A petition including numerous allegations of state shortcomings was delivered to the Charleston branch of the OSM June 24 and protesters marched several blocks to the Capitol to deliver a copy of the petition to Gov. Earl Ray Tomblin. Goodwin said that the DEP needs to be held accountable for allowing "flagrant and routine violations" of minimum standards set forth by federal law.

The petition specifically accuses the DEP of permitting mines in violation of SMCRA and of failing to terminate not-started permits. It also criticizes staffing and funding of the DEP.

Debbie Jarrell, co-director of Coal River Mountain Watch, said that West Virginia's Department of Environmental Protection has consistently failed while peer-reviewed studies crop up linking coal mining activity to poor community health and stream damage.

"West Virginia's Department of Environmental Protection's programs have consistently failed to comply with the law to protect state residents and natural resources," Jarrell said at the rally. "The citizens and the environment are not being protected."

She said she finds it "alarming" that more isn't being done to protect people's health.

"Cancer is as common as the cold here," Jarrell said. "… We, as West Virginia citizens, have no other recourse than to ask the Office of Surface Mining to step in and implement a federal program."

Huffman said he finds it difficult to reconcile why environmental organizations would want the OSM to step in and take over the regulatory program. He said the OSM already has oversight authority over the agency and the budget sequester is already putting a tight squeeze on that federal program.

"I'm having trouble reconciling a mandate for OSM to take us over right now with the facts – the fact being they've been right in our rearview mirror for 35 years and that they're broke," Huffman said.

Rev. Denise Giardina, an author and Episcopal deacon, also spoke at the rally to deliver the petition. She said that the coal industry in West Virginia has too much political influence for anyone but federal regulators to control the industry.

"When you look at the state of West Virginia, West Virginia is a wholly owned subsidiary of the coal industry," she said.

Huffman said he believes the DEP has "a very good regulatory framework in place" between state and federal rules and regulations.

"The other states need to be looking to us as the standard-bearer," Huffman said. "When I see factually and read and hear anecdotally about he regulatory programs in other states, West Virginia is the second leading coal producer in the nation, and we are by far the leader in regulating this industry when it comes to environmental protection and people protection – hands down."

Huffman said he's not claiming his agency is perfect. Work needs to be done, but he doesn't see the reasoning behind the message delivered by the CARE campaign.

"I think we're doing it right now, but I'd never say we're done or that nothing more needed to be done," Huffman said. "I think there will always be improvements and tweaks to the process as the technology changes and we learn more.

"There's been a lot of leadership in West Virginia regarding regulating coal mines."

What the DEP has done, however, has not convinced Chuck Nelson, a retired UMWA underground miner, who spoke at the rally. He said the rivers and streams where he grew up are being devastated by mining companies.

Nelson said he knows what coal does positively for communities where it operates. But, he said, he also sees it depopulating the coalfields and causing illness in his community by not cleaning up its waste. He said the DEP should stand up and do more in enforcement.

"There's so much that the DEP hasn't done, and there's proof there that they haven't been doing their jobs over the last 35 years," Nelson said. "There's sufficient evidence there that the Office of Surface Mining should take over enforcement of the DEP."

Members of CARE campaign coalition include Coal River Mountain Watch, Ohio Valley Environmental Coalition, WV Highlands Conservancy, WV Rivers Coalition, Keeper of the Mountains Foundation, League of Women Voters of West Virginia, Mountain Heritage and Health Association, WV Sierra Club, WV Citizens Action Group, WV E-Council, Christians for the Mountains, Catholic Committee of Appalachia, Appalachian Catholic Worker, National Wildlife Federation, Center for Biological Diversity, Sierra Club, Earthjustice, Appalachian Voices and the Center for Health, Environment and Justice. 

The petition also was forwarded to the Department of the Interior and the Environmental Protection Agency.

No immediate comments were available from the OSM, Tomblin's office or the West Virginia Coal Association.