Mining legislation dodges big-picture debate
In December, a task force appointed by Gov. Cecil Underwood urged the governor and Legislature to debate whether mountaintop removal mining is good or bad for West Virginia.
But if the governor's State of the State address and bills being promoted by legislative leaders are any indication, neither Underwood nor the Legislature plan any such debate.
In his speech last week, Underwood criticized federal air pollution regulations and an international climate change treaty the governor says will cripple the state's coal industry. He didn't mention mountaintop removal.
Legislative leaders have said they will probably repeal a bill passed last year to allow coal companies to fill in bigger streams with mine waste without compensating the state for the loss.
Last week, a legislative interim committee also recommended to the full Legislature a series of bills being promoted as an effort to reduce mine blasting damage to coalfield residents.
"The only problem is that it will sound like they did something," said Cindy Rank, mining chairwoman of the West Virginia Highlands Conservancy.
The fundamental question
"The legislators are not willing to deal with that more fundamental question: whether or not mountaintop removal mining is beneficial to the state of West Virginia in the long run."
Mountaintop removal mining blasts off hilltops to uncover valuable, low-sulfur coal seams. Leftover rock and earth are dumped into valleys, burying streams.
No one knows exactly how much acreage has been affected. But most of the state's major surface mining complexes are mountaintop removal operations, some covering 10,000 acres or more.
Last year, coalfield residents and environmental groups joined together to raise the profile of complaints about mountaintop removal. The U.S. Environmental Protection Agency temporarily stopped the state from issuing new mountaintop removal permits. A partial settlement of a federal court lawsuit promises to make it harder for coal companies to get new permits.
In response to criticism that he wasn't addressing the issue, Underwood appointed a task force to investigate mountaintop removal and recommend regulatory reforms if they were needed.
Reporting to the governor
Task force members concluded, "The law provides no guidance on the greatest source of the public's angst: How much modification of the natural landscape will West Virginia sustain for the very substantial economic benefits of MTR mining?
"Public opinion clearly demonstrates that the natural landscape has compelling aesthetic, natural heritage and even cultural values to our state," the task force said in a report to the governor. "These questions engage fundamental political, social and economic values which are properly and exclusively the province of the Legislative Branch."
Last week, a joint House-Senate interim committee proposed eight bills that deal mostly with citizen complaints that mountaintop removal blasting damages their homes and water supplies.
During a speech on Thursday, Senate Judiciary Chairman Bill Wooten, D-Raleigh, predicted the proposals will pass.
"The recommendations are a good starting point for where I think we'll end up," Wooten said.
John Ailes, chief of the DEP Office of Mining and Reclamation, said he hasn't completely reviewed the legislation yet, but thinks the bills may be a good start.
"The devil is in the details," Ailes said. "But there is some good stuff in here. These are some steps in the direction of dealing with things people are concerned about."
Moving the buffer zone
Another bill would move back from 300 feet to 1,000 feet the buffer zone between active mining sites and occupied dwellings.
"That's a biggie," said Ed Griffith, an assistant DEP mining chief. "It's going to have a big impact."
In at least two instances, the DEP has included a 1,000-foot limit in permits or through enforcement actions. Citizens who live near active mines support this change, which is more stringent than the 1977 federal Surface Mining Control and Reclamation Act.
Chris Hamilton, vice president of the West Virginia Coal Association, said the industry will oppose the measure.
"That's just going to sterilize a lot of coal in Southern West Virginia," Hamilton said. "If you apply those numbers to mine sites active in the Southern coalfields, a lot of those are going to be off limits."
Environmentalists don't think the bills go far enough to help citizens who live near mountaintop removal mines and have been bothered by blasting.
"I see a lot of fluff and not a lot of substance," said Tom Degen, lobbyist for the West Virginia Environmental Council. "It's going to shake out to be nothing."
Rank said she is disappointed that most of the proposed legislation deals with compensating the state or citizens for damage done by mountaintop removal.
"It's more important to figure out how not to do that damage in the first place," Rank said.
A list of solutions
The West Virginia Organizing Project, a citizens group based in Logan, has prepared a list of proposed legislative solutions to blasting problems. Among them are:
Making coal companies that blast near homes responsible for any damage, not just to water supplies, whether or not residents can provide absolute proof that the blasting caused the damage. A similar bill to provide this "presumptive liability" died during last year's legislative session.
Cut in half the amount of ground vibration allowed to be created by mine blasting.
Require pre-blast surveys for everyone living within 1 mile of a mine site, with updates of those blasting surveys done every year.
Reduce from 129 decibels to 110 decibels the current limit for air blasts from mining explosives. The current standard allows blasts to be slightly louder than a thunderclap. The proposal would allow blasts to be as loud as a car horn sounds from 3 feet away.
Lots of other issues surrounding mountaintop removal have not been mentioned by the governor or legislative leaders as likely to be addressed by proposed legislation this year.
They include developing a more concrete definition of the approximate original contour reclamation rule, tightening up post-mining development rules for mountaintop removal mines, and limiting the amount of waste rock and earth companies can dump into valleys and streams.
Norm Steenstra, chief lobbyist for the environmental council, said that continued citizen pressure could force lawmakers to deal with the larger issues surrounding mountaintop removal.
He cited public opinion polls that show a majority of West Virginians want to limit the scope of mountaintop removal.
"Mitigation isn't going to be the issue at the Legislature next year," Steenstra said during a task force hearing in November.
"It's going to be the 66 percent of West Virginians who want this slowed down or abandoned."
To contact staff writer Ken Ward Jr., call 348-1702.
A legislative interim committee has recommended passage of eight separate bills concerning mountaintop removal mining. Here is a summary of each:
Repeal of Senate Bill 145. This bill, passed during the 1998 Legislature, increased from 250 acres to 480 acres the size of watersheds where coal companies could bury streams with valley fills without compensating the state for the water loss.
Increase from 300 feet to 1,000 feet the buffer zone between active mining operations and occupied dwellings. Under the bill, owners and/or residents could waive the restriction if the distance is between 500 feet and 1,000 feet.
Require coal companies to preform pre-blast surveys for residents who live within 0.7 miles of active mining operations. Currently, companies are required to do surveys only if they are requested by residents. Under the new proposal, residents could refuse the surveys.
Describe the requirements for a proper pre-blast survey, including notification by mining companies to residents, approval of surveys prior to the start of mining, and the actual contents of a pre-blast survey.
Create the Office of Explosives and Blasting within the state Division of Environmental Protection. The office will review and approve blasting plans prior to the issuance of any surface mining permits. In 2001, all blasting in the state - not just at surface mining - would fall under the office's jurisdiction.
Instruct the DEP Office of Environmental Advocate to educate the public about blasting complaints and pre-blasting surveys.
Give the DEP authority to take enforcement action, including fines, against surface mining operations that violate blasting rules. The first offense would require a fine of at least $5,000.
Require coal companies to replace damaged water supplies within 30 days, if the property owner had a pre-blast survey and lives within 0.7 miles of the mining operation. Unlike current law, the property owner would not have to prove that the mining operation specifically caused the damage. If water supplies are damaged, and surface mining was being conducted, it would be assumed that the mining caused the damage.