Is It Time For West Virginia's DEP To Start Doing Its Job?

In a 13-page letter, a group of environmental organizations—the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, and the West Virginia chapter of the Sierra Club—has given the EPA 60 days’ notice demanding that the agency reject as inadequate a list of polluted streams that West Virginia’s Department of Environmental Protection (DEP) recently submitted to the EPA or face a lawsuit. Something like this should have happened long ago. As far as West Virginia and mountaintop removal go, things have been out of whack for a long time.

The law that governs mountaintop removal, the Surface Mining Control and Reclamation Act (SMCRA), gives to the states the responsibility of issuing permits for mountaintop removal mining. In West Virginia, the DEP issues these permits. Way back in 1997, in the pages of US News and World Report, Penny Loeb first shined the national spotlight on Appalachian mountaintop removal. Even back then she said that the, “DEP's regulations are outdated, its enforcement muscle is puny, and it is constantly reacting to problems rather than heading them off.”

            Whenever the DEP has stepped in to “enforce” the law, most of the time the fines are very low, even for the most serious of violations. The average fine is about $800 per incident. Nearly 80 percent of the fines were reduced after mining companies protested their fines.

            Over 20 years ago, in an investigative report, Charleston Gazette reporter Ken Ward found that the West Virginia DEP did not know the amount of land of the Mountain State the had been permitted for mountaintop removal. The DEP did not even track the number of permits that it granted for mountaintop removal. Ward also found that one third of the acres to be mined by MTR in West Virginia were designated to be reclaimed for “fish and wildlife habitat,” a use that is not allowed under SMCRA.

In this latest development, the West Virginia Legislature, in a bow to the coal companies, passed weaker water quality standards last year. Instead of following protocol and submitting the new standards to the EPA for consideration, the group’s letter says that the DEP “has defiantly taken the indefensible position that [the new standards are] not a revision.” In the Kafkaesque world of West Virginia and coal, West Virginia’s DEP is saying that a revision to the rules is not a revision to the rules, even when the rules change.

The environmental groups contend in their letter that the EPA has the duty to ensure that state agencies properly perform their functions and do not abuse their powers. The group also contends that for the EPA to allow West Virginia to operate as it has gives a clear message to regulators and coal companies that they can continue to disregard our nation’s laws “without consequence.” They urge the agency to intervene in the case of West Virginia or otherwise be subjected to their lawsuit.

I cheer the West Virginia Sierra Club, the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition, and their latest efforts. It is high time that the rule of law apply to the state of West Virginia and its mining companies.