MOUNTAIN TOP REMOVAL

— LETTER TO THE GOVERNOR —

To: Governor Cecil Underwood

From: John McFerrin

Re: Minority Report of the Governor's Task Force on Mountaintop Removal

Date: January 2, 1999

INTRODUCTION

You have recently received the final report of the Governor's Task Force on Mountaintop Removal. As you know from the Report, I voted against its adoption. Since the report contains little to indicate why I voted as I did, I would like to offer you some explanation.

I would also like to offer you the benefit of a perspective which is different from the others on the Task Force. At the time of the formation of the Task Force you indicated how much you valued different perspectives. If the Report does not reflect all perspectives, then that which you value is lost.

OVERALL CONCLUSION

After considering all the testimony at public hearings, my own study, and various documents, it is my belief that mountaintop removal mining should be banned. To the extent that any of the committee reports allow for its continued existence then I disagree with them.

My conclusion comes from many sources. First, it is not economically useful. Coal mining is at best a temporary benefit to our state's economy. The historical record is overwhelming that the presence of coal mining does not contribute to the long term economic health of West Virginia. In counties where it is found, it is the dominant economic activity. Yet the non-coal economy does not thrive. If coal does anything for an economy, it is that it creates a prosperous economy for coal companies and temporary employment for some (although the number is declining) workers. It does nothing for the economy as a whole. If this were not true the coal counties would not be the poorest in a poor state.

Given the brevity of the future life of the coal industry in West Virginia, it is folly to continue allowing an industry to rip up our state in exchange for the short term boost to the fortunes of a handful of mining companies and a shrinking number of workers.

Second, it is environmentally damaging. This should be an uncontroversial conclusion. The process takes millions of tons of dirt and rock and dumps it into valleys. It fills streams. It replaces living, growing forests with grass and (on rare occasions) struggling seedlings. Nature has awesome recuperative powers. Several centuries hence it will have corrected this damage. To say that the mining is not environmentally damaging is ludicrous.

That the mining is environmentally damaging does not, of course, fully answer the question of whether we allow it to continue or not. Most things we do are environmentally damaging. Were there economic or social benefits that outweigh the environmental damage then the continuation of mountaintop removal mining would be a reasonable option.

Mountaintop removal mining is the most intrusive, most hideous, most environmentally destructive practice one can imagine. The very name says it all. Were it producing the best schools, the best roads, the healthiest people, and the most prosperous economy then one could consider tolerating this practice. Since it is not, the environmental damage is not tolerable.

Third, the people oppose it. In the only published poll, those opposing it led those favoring it by 53% to 29%. By any measure, this is a landslide. This is in spite of a barrage of advertisements in newspapers and on television praising the practice. If we had an election in which only one party campaigned and that party still lost convincingly, we would conclude that the people had spoken resoundingly against the losing candidate. We can conclude no less here.

Fourth, mountaintop removal mining is illegal. The valley fills which are inevitably associated with mountaintop removal mining are wholesale violations of the Clean Water Act. Even were it not a wholesale violation of the Clean Water Act, the post mining land uses are not the limited ones that the federal Surface Mining Reclamation and Control Act require.

Fifth, mountaintop removal mining is immoral. The Methodists, the Catholics, the Episcopalians, the Lutherans, and the Presbyterians have all passed resolutions opposing mountaintop removal mining. When the religious community speaks with such unanimity, it is only proper to give that some weight.

In addition to the overwhelming opposition from organized religion to mountaintop removal, there is a moral dimension to the question of the continued use of coal as a fuel. The use of coal as a fuel contributes to global warming, makes people sick from breathing polluted air, and contributes to acid rain. One might be able to justify it as a necessary evil until we can replace coal with cleaner sources of energy but no one could contend that continuing to burn coal is a sound moral position.

By continuing to use its political influence to promote the use of coal, West Virginia is advocating for continued use of a socially damaging fuel. In doing so, it takes the morally suspect position of advocating a socially damaging practice because that practice serves its selfish purposes.

Were West Virginia not so strong an advocate of the continued use of coal, the nation could more easily move forward to a world of cleaner energy. Were we to be guided only by moral principles, we would work for the day when no coal will be burned. To the extent that we can move away from coal to another energy source and an economy that does not rely upon coal, we have a moral obligation to do so. Finally, and perhaps most persuasive in my consideration of mountaintop removal, is the attitude of the coal industry itself as demonstrated at the public hearing on November 17.

For longer than anyone can remember, the public policy of the state of West Virginia has been to do whatever it could to meet the needs of the coal industry. This has produced the second poorest state in the nation, a state with hundreds of miles of streams dead from acid mine drainage, hundred of miles of streams obliterated by valley fills, and thousands of miners crippled with black lung.

Mountaintop removal mining could only be justified were this relationship reversed. Instead of designing public policy to meet the industry's needs, the industry must meet West Virginia's needs. Unless it is willing to do that, then there is no justification for mountaintop removal mining.

From the comments at the public hearing, there is no indication that this is true. The industry representatives praised the current practice of reclaiming land to "wildlife habitat" a practice that has no legal, economic, or social justification. Its only redeeming feature is that it is cheap, an attractive quality for the industry but not for the state of West Virginia.

If there is any doubt about the industry attitude, consider the comments of K.O. Damron. He found the modest suggestions that the coal industry should take some steps to reduce the impact on communities totally unacceptable. If this is the attitude of the industry as a whole, then the state of West Virginia is not dealing with a reasonable industry. Instead, it is dealing with an industry which has had so much power for so long that it is incapable of considering the possibility that it may not be allowed to do exactly what it wants. It is an industry that has historically put its needs before those of the public and sees no reason to change.

There is, or course, the possibility that Mr. Damron is only the lunatic fringe of the coal industry, turned loose to make the rest of the industry seem reasonable by comparison. If he is typical, however, then we are not dealing with a reasonable industry. We are dealing with an industry that will continue to do as it has always done until it is forced to change. We are dealing with an industry that will fight every step of the way. Given how far we would have to go to make mountaintop removal acceptable, there is little point in beginning that journey with such a recalcitrant industry.

For all these reasons, I conclude that mountaintop removal mining should be eliminated.

Given this overall conclusion, anything that I have to say concerning committee reports would be, in one sense, moot. If I oppose the entire practice, then there is little sense in commenting upon committee reports which assume that it will continue.

In spite of this, I offer the following comments. Even though my views on the wisdom of continuing the practice did not gain the support of the Task Force, there are still ways in which the report of the task force could be improved so as to provide you with more useful policy advice.

COMMITTEE ON THE ECONOMY

The report of the Committee on the Economy contains some useful recommendations. It recommends that we eliminate "wildlife habitat" as an approved post mining land use. This method of reclamation is illegal anyway. Its only appeal is that it is cheap to carry out. It produces land with no economic value. As a legal and economic matter, there is no justification for this as a post mining land use.

The report suggests a method for determining what land could be reclaimed for an industrial use. This is another positive step. The discussion of the entire issue of mountaintop removal has been full of general statements of "We need more flat land." This generalization may be true in some circumstances. There are some situations in which more flat land would be beneficial for industrial development. It is not, however, universally true. The vast majority of flat land created by mountaintop removal is remote, has no water, is of uncertain stability, and is inaccessible. Flat or mountainous, it has no potential as an industrial site. The report suggests specific criteria for approval of an industrial post mining land use. They are based upon a realistic understanding of the industrial potential of sites and the necessity of access, water, etc.

In the past post mining land use suggestions which proposed industrial land use were little more than shams. Regardless of the contour of the post-mining land, the sites were unsuitable for any industrial purpose because of their remoteness, etc. By proposing a set of criteria, we make it possible to separate the shams from the realistic proposals and make permitting decisions accordingly.

The Committee's conclusion that most post mining land uses would be commercial forestry contains both good and bad features. The feature which most strongly recommends it is that it is vastly superior to the current practice of allowing the industry scam of "wildlife habitat" as the dominant post mining land use. The only appeal of "wildlife habitat" reclamation is that it is cheap for the companies, something which the industry finds appealing but the public good does not. One can hydroseed an area and call it a "wildlife habitat." Regardless of what you call it, it is still a field of grass which has no economic, aesthetic, ecological, or social value. Whatever its deficiencies, commercial forestry is an improvement.

There remain concerns about commercial forestry as a post mining land use for mined land. First, it is probably illegal. The regulation on post-mining land use for mountaintop removal sites allows "woodland." The regulations define woodlands as those "where flat or gently rolling land is essential for the operation of mechanical harvesting equipment." There is not a scrap of evidence that this condition exists on any commercial forestry site in West Virginia. The timber industry routinely cuts trees on other than "flat or gently rolling land." One cannot seriously argue that the creation of such land on mountaintop removal sites is "essential" to commercial forestry.

Second, it is unproven. The Committee relied almost entirely upon the experience of the Powell River Project. Even that project is based upon speculation. It assumes that its "projections" about trees which live fifty years are accurate. It has not ever actually had any trees that lived fifty years to test whether those projections are accurate.

There is reason to believe that the assumptions of the projections, even if accurate, cannot be extrapolated to mountaintop removal sites. As one of the speakers at the public hearing pointed out, the presence or absence of water is a limiting factor in tree growth. The disturbance that is the site of the Powell River Project is much less dramatic than that in a mine on the scale of the mountaintop removal mines in West Virginia. The interruption in the hydrology would be accordingly greater on a mountaintop mine.

Earth disturbance on the scale of a mountaintop removal creates a completely unpredictable water table. As the bulletins of the Powell River Project pointed out, mining creates land where it is possible to have saturated soil very close to the surface. At the same time, it is possible for the reclaimed area to be dry all the way to the natural ground. This variability occurs because of the unpredictable variability in the size of the backfill particles. They can range from dust to boulders. The result will be that a site reclaimed as "commercial forestry" may well be a site where the water table is such that long term growth of trees is impossible. At a minimum, we could expect that the available water would often be much deeper that it currently is. This deeper water would have an adverse effect upon tree growth.

The use of commercial forestry as a post mining land use is also in direct contradiction to one of the core assumptions of mountaintop removal mining: that the material does not weather to soil. The fundamental assumption about the construction of a valley fill is that the material is durable. The design assumes that the material will remain in large particles as rock rather than weathering to soil. If it weathers to soil the fill no longer drains properly and becomes unstable.

The Powell River Project makes the opposite assumption:

"The surface four feet of mine soil material should be easily weatherable so that most rocks and boulders decompose to fine soil materials within a few years."

Both assumptions cannot be true. Either the material on site is such that it will never weather to soil (the assumption behind fill construction) or it will weather to soil within a few years (the assumption behind forestry). The same material cannot simultaneously contain properties causing it to weather and not weather.

The Powell River Project also identifies soil qualities that are necessary to establish commercial forestry. It recommends that "siltstone and shale that occur directly above or below coal seams should be avoided. These rock types usually have high levels of soluble salts, a high pH, and compact to greater densities when trafficked." Since mountaintop removal mining typically involves several seams, this will in all probability mean that to reforest successfully would require segregation of multiple strata containing these soluble salts, etc.

The report of the Committee on the Economy assumes that commercial forestry is an achievable post-mining land use. This is, at best, a half truth. It may be achievable as a theoretical matter but it has never been achieved. In order to achieve it, any mining company would have to overcome such problems as the irregular water table, the weatherability or non-weatherability of spoil, and the segregation of the strata which contain soluble salts.

Even where, as the Powell River Project assumes, all these barriers can be overcome, the result is inferior to the pre-mining land use. This places such uses in violation of state and federal laws which require that land be restored "to a condition capable of supporting the uses it was capable of supporting prior to any mining, or higher or better uses" The pre-mining land use on mountaintop removal sites is overwhelmingly native forest. They have avariety of species and substantial aesthetic and ecological value in addition to their value as sources of marketable timber.

Not even the Powell River Project claims it can replicate this:

"Mined land cannot be artificially prepared for these [native] species. Instead, pioneer species such as leguminous trees and shrubs (black locust, autumn olive, and bicolor lespedeza) and pine species that can tolerate a wide range of acidity, fertility, moisture, and temperature should be established first."

The bulletins of the Powell River Project do go on to assume that these "pioneer species" will eventually yield to native hardwoods. Unless the term "eventually" means "some time within the next five hundred years" there is absolutely no evidence that this is true. If by "forestland" we mean the kind of land that existed before mining, there is no reasonable possibility that this will occur in any time frame that is meaningful.

There are various ways to address the technical difficulty of establishing a forest on mined land. One is to require a level of sophistication of the permitting agencies that is to date unprecedented. It will no longer be sufficient to examine the company's seed mixture and nod in agreement. It will require consideration of material handling techniques, placement and segregation of soil strata, water requirements, etc. Unless we start examining such proposals with such a sophisticated and critical eye, the post-mining land use of forest land will turn into little more than the scam that "wildlife habitat" is today.

Second, we need a bonding period that is substantially longer than we now have. Current bonding practice is to begin releasing bonds or portions of bonds as soon as land is graded to its final contour and revegetation has begun. With forestry, this is much too short a period. Developing a forest is a long term project. If we allow mining on the assumption that the post-mining land use will be a forest, we must not release the bond until after that forest has been created. If fifty years is required to create a forest, then a fifty year bond is appropriate.

Even though it contains some intriguing suggestions, the report of the Committee on the Economy is most striking for what it leaves out. The Committee on the Economy was presented with data which indicates that the life expectancy of the coal industry is so severely limited that planning for its imminent demise would be prudent. The report does not mention this.

The Committee on the Economy had a presentation from a coal economist. From his presentation, I conclude that we are in the midst of an historic shift. He said that coal from the west produces about 2/3 of the heat per pound as does coal from West Virginia, Kentucky, etc. Even with the transportation costs and lower heat of western coal factored in, a power plant in Cincinnati can still burn western coal at a substantially lower price per BTU than West Virginia coal. The western coal is lower in sulphur, making it attractive to those seeking to comply with the Clean Air Act.

There are some modifications that would have to be made in boilers at power plants to burn Western coal. Reluctance to spend this money keeps West Virginia coal as a viable option in the short term. As the boilers age and are replaced, this will no longer be true.

He said that during times of peak demand for electricity it may always be necessary to burn West Virginia coal since it was not possible to shove enough lower BTU western coal into the boilers to run them at peak capacity. Thus the future market for West Virginia coal may be limited to those few days each summer when the power plants have to run at peak capacity.

Deregulation of electricity prices can only make things worse for the West Virginia industry. Monopolies now insulate the utilities from some cost pressures since they can pass the cost to the consumer. With a free market for electricity, this will no longer be true. Utilities will be even more subject to price pressures than they are now. West Virginia coal cannot stand the price pressure forever.

Although the coal economist did not mention them, there are also national and international pressures. The Kyoto Treaty and the phase in of the Clean Air Act are indications that the world and the nation will no longer tolerate the level of pollution that coal produces.

The coal industry in West Virginia is dying. There may be room to quibble about about the time frame but there is no way we can ignore international pressures on climate change, the Clean Air Act, etc. Even were we able to ignore those, we cannot ignore the economic pressures of western coal.

Historically there has only been a vague, general recognition that the coal industry is dying. When anyone mentions it, it is usually with all the urgency that someone mentions that the sun is consuming its fuel supply and will eventually burn itself out or the Earth will eventually be struck by a giant asteroid. The death of the coal industry is not some distant abstraction. It is a certainty which will probably come soon enough that we have to start planning for it. As the leader of West Virginia, it is imperative that you recognize this and make this reality a part of state policy.

Regardless of how one views the coal industry, its disappearance will have an enormous impact upon West Virginia. Schools will have to find some way to make up for this loss of revenue, as will political campaigns. Because of the dramatic (and imminent) impact of this disappearance, West Virginia needs to begin planning for it.

From an economic standpoint, there are two ways to deal with this imminent departure of the coal industry from West Virginia. One is the way we have always done it: put the pedal to the metal, don't demand anything of the industry, go all out and get as much coal out as we can in the next twenty years. When the inevitable collapse of the coal industry in West Virginia comes, Arch Coal can move its production to Wyoming while we can sit here and wonder how we let billions of dollars of coal leave the state and have nothing to show for it. The second is to spend the next few years preparing for a post coal economy. As Governor, it is your duty to guide the state along this more productive second path.

This more productive second path requires guidance by certain principles, principles that are borne out by the historical record.

The first of these is that sitting still and assuming that the coal industry will, on its own, create a post-coal economy is folly. The historical record is overwhelming that it will not. It has been the dominant economic and political force in West Virginia for a century; during that time it has not developed a prosperous economy. It has led us to the bottom. Assuming that it will do anything else in the next few years unless forced to do so is hopelessly naive.

Second, the relationship between the coal industry and the state must change. For recorded history, it has been state policy to do whatever was necessary to meet the industry's needs. We did this partly because the industry has always wielded enormous political power. We did it because nobody tells the 900 pound gorilla where to sit.

A more charitable view is that we did this because we assumed that the coal industry was so important to West Virginia's economy that its needs were synonymous with the needs of the state. We assumed that, just as what's good for General Motors is good for the nation, what's good for Pittston is good for West Virginia.

History has shown that this is not true. What's good for the coal industry is not good for West Virginia. Were that true, the last century of working to meet the industry's needs would have produced a more prosperous state.

The new relationship has to be that West Virginia will meet the industry's needs, including allowing it to continue to exist, only if it also makes some identifiable contribution to the overall economy, including the post-coal economy. If it does not, then it can leave now and we will begin the task of building a new economic base.

The requirements of post-mining land use may say this implicitly. To communicate to the coal industry, we need to say it explicitly. West Virginia has the enormous power inherent in our ability to issue or deny permits. We need to say directly that unless there is some tangible economic benefit and something that helps us build a post-coal economy, there will be no permit.

The coal industry is not the most subtle and perceptive bunch, particularly when it comes to the possibility that it will not continue to do whatever it wishes. When faced with overwhelming public support for some additional protection from blasting damage for those who live near the mines, the coal industry mumbles about the "perceived" damage and the adequacy of present law. From its public statements, there is no indication that anyone in the industry even recognizes that there is a problem. about Beyond rattling off its statistics about jobs created and taxes paid, the industry appears incapable of considering that someone might demand that it do something to create a prosperous state. If it is to understand that state policy is changing and that this will now be demanded of it, it needs to be told explicitly.

Finally, we must make clear that the requirements of an identifiable contribution to a post coal economy is a requirement, not an aspiration. For over twenty years it has been the law that mountaintop removal mining is only allowed if the post-mining land use is industrial, commercial, agricultural, residential, or public (including recreational facilities).

The law already requires that the applicant for a permit have specific plans for a post mining land use that falls in one of these categories. There must be commitments and assurances from public and private sources that there will be the necessary infrastructure, etc. Had we faithfully followed this law, then we could have begun creating the conditions for a productive post-coal economy.

While these were nominally legal requirements, in practice they were voluntary. In the late 1970's, surface mine applications contained sketches of airports, housing developments, etc. Those were never built. The most famous example is Bullpush Mountain. It was promoted as the future home of a self-contained residential community. Twenty years later, it is a field of grass. Either there were no real plans or no mechanism for making sure that the plans were carried out.

If requirements that any surface mine which is granted a permit make a contribution to a post-coal economy are to be meaningful, we must develop a regulatory attitude that makes them meaningful. We must demand detailed plans of any post mining land use as part of the permitting process and use bond forfeiture, permit revocation, permit blocking, or any tool at our disposal to guarantee that the planned post mining land use actually comes about.

The report of the Committee on the Economy also uncritically accepts the assumption of the industry that coal mining is good for the economy. While it may be good for the personal economies of several individuals, for the overall economy the opposite is true. I see no way to avoid the conclusion that coal mining is not a productive tool for economic development. If it were, then we would already be rich. We would not be scraping the bottom in every measure of economic prosperity. Our coal counties would not be the poorest in a poor state.

Many speakers at our public hearings touched upon the theme that we should not restrict coal mining because that is the only economic activity in the counties where it is practiced. Those speakers cited the chronically high unemployment rate in coal counties as a reason to encourage more coal mining. I draw the opposite conclusion. I see it as a reason to conclude that our historic economic development strategy of doing anything the coal industry wants as a colossal failure. If coal mining were the engine that drives economic development, coal counties would not routinely lead the state in unemployment. At the time the coal industry arrived, West Virginia ranked about the middle among states in terms of prosperity. Now we are at the bottom. While the coal industry may not be entirely responsible for this drop, it must share part of the blame.

Neither did the Committee address the effects of what an economist would call externalized costs. These are costs which the industry wishes to ignore. It deals in dollars and cents. It invest dollars; in exchange it gets more dollars. The coal comes out; their investors are happy; their lobbyists can rattle off figures about how much they are adding to the local economy.

Economic theorists would call those items of damage which are difficult to measure externalized costs. Those are the costs to society that are inherent in the mining but which are not borne by the mining company.

The company would, of course, bear the costs of its equipment, the wages it pays, the fuel it buys, etc. These are not the only costs. At the same time the mining is costing the company the price of its equipment, wages, and fuel, it is costing society the beauty of its mountains. It is costing us miles of free flowing streams. It is costing us the opportunity to breathe without choking on clouds of dust. It is costing those who live near the mines the opportunity to live in peace. These are the things that the economist would call "externalities". They are the costs that the mining industry imposes upon society as a whole.

It is understandable that the Committee did not address this. These costs are difficult to place a value upon. Even were it possible to place a value upon these costs (such as property damage) there is no central registry which collects this data. Unlike such things as employment and taxes, there is no one who is charged with collecting this data.

This does not, however, mean that the information is unworthy of consideration. These costs are every bit as real and every bit as important as more tangible costs or costs that may more easily be documented. If the Governor is to have a true picture of the effect of mountaintop removal on the economy he should consider these costs as well.

Finally, the report of the Committee on the Economy is full of assumptions about West Virginia's obligation to consider the investments that various companies have made in West Virginia and take steps to avoid jeopardizing those investments. This is ridiculous. Those companies made those investments on the assumption that West Virginia would continue to ignore, at a minimum, the state and federal Clean Water Acts and legal requirements of post mining land use. Given West Virginia's history, this is not a bad assumption. It is not, however, the basis for allowing companies to continue to ignore the law. That West Virginia would continue to both ignore the law and make no demands upon the industry was a calculated risk. If changing the way we deal with the mining industry is in West Virginia's best interest, we should make the change regardless of whether industry made a poor calculation.

COMMITTEE ON THE PEOPLE

The Committee on the People presents the charming and, at least for West Virginia, unique idea that the coal industry has an obligation to diminish its impacts upon the community and make some contribution to the community. This is an idea that we should have come up with a hundred years ago. Had we done so, we would be living in a better state.

As Justice Frankfurter of the United States Supreme Court observed, wisdom so often never comes that we should not reject it simply because it comes late. In the same way, we should not reject the wisdom of expecting the industry to make a positive contribution to the community just because it comes today rather than a hundred years ago.

As appealing as this idea may be, its successful execution depends upon the truth of assumptions that are either illegal or that the historical record has shown to be untrue.

The report recommends creating within DEP a Bureau of Community Impact. Its job would be to assess the impact upon the communities of mining. There would be procedures to protect people who live near the mine from being cheated when they are bought out. There would be procedures for ensuring that the company made some sort of positive contribution to the community, that it built community facilities, etc. There would be procedures by which economic development authorities could demand that permits be conditioned upon the company creating industrial sites (not necessarily at the mine). Were the Bureau of Community Impact working perfectly, the coal industry would have to spend its remaining time here creating the basis for a post-coal economy.

As charming as the idea is, it is based upon flawed assumptions. It assumes that the industry has the right to damage a community so long as it takes steps to correct the problem. This is not the way the law works. The law requires that a mining company "prevent" damage due to blasting. It does not say minimize damage or pay for it afterwards. The word in the law is "prevent".

The law makes the same assumptions so far as post-mining land use is concerned. It assumes that the mining is a temporary use and that after mining the land will have a higher or better use. Common law several centuries old assumes that people had the right to the quiet enjoyment of their homes. Nowhere is there any legal principle which says that a mining company, by virtue of its greater wealth, bigger equipment, and possession of explosives has the right to deprive a family of this right.

The Bureau of Community Impact would be no more than a government assisted process for negotiating away the rights that the law currently gives citizens. It begins with the assumption that companies have the right to damage houses, destroy communities, and deprive people of their right to quiet enjoyment of their homes. Even the best attempts to ameliorate these impacts will only result in the communities receiving less than what the law entitles them to.

Equally serious is my concern about the people who will run this program. The DEP's entire focus has always been the environment. Perfect reclamation to it is something (it doesn't matter what) growing and clean water leaving the site. They have never been oriented toward anything other than making something grow and keeping debris from tumbling over the side of the hill. Thinking about the community is completely foreign. It is a change of role that is akin to reassigning the public libraries to the Department of Highways. Regardless of the high esteem in which we may hold the Department of Highways, this is too great a difference in mission to expect it to work. Even were we to assume that DEP will try its best, that is not their culture.

If we want information on how well DEP could perform this new role, we have only to look at how well it has carried out the things that are at least nominally part of its culture. Water is something they are supposed to care about. For 20 years the law has required an assessment of the cumulative hydrologic impact of all anticipated mining before any permit could be issued. For at least ten years DEP didn't do anything to carry out its duty. Had it done a thorough and complete job of this legally assigned task, it would not have to stand before the Task Force and announce that it had no idea what the environmental impacts of mountaintop removal are.

Once DEP started making even a token effort, it did an embarrassingly poor job. They don't even know how many miles of streams have been filled. Is there any reason to believe that anyone at DEP has a clue on what the cumulative hydrologic consequences of mining are? Protection of the water is at the core of DEP's mission. It is not accomplishing that. If it is not accomplishing this core function, is there any reason to believe that it will have any more success in considering the impact on the community.

DEP's approach to the assessment of the probable hydrologic consequences is another illustration. The law requires that, as a part of getting a permit, the company make an assessment of the effect of the mining on the hydrology of the area. When companies do this, they routinely say that the hydrologic impacts will be of the mining will be zero; DEP nods its head obediently.. What is there to give us any confidence that the same agency that sits and nods when the company says the impact on the water will be zero will not also sit and nod when the company says that the impact on the community will be zero?

As appealing as the idea of working to diminish the impact on the community may be, there is absolutely nothing to give us confidence that the DEP can possibly carry it out. There is too much history of subservience to the coal industry by the DEP. Had the DEP been oriented toward protecting the people from the coal industry rather than the reverse, it would have been finding ways to require the companies to "prevent" damage rather than wringing its hands. Had it been oriented toward creating a prosperous community, it would have worked at requiring post-mining land use that is higher and better land use rather than bogus wildlife habitats. It would have been honestly studying the effect of mining on the hydrology of the area and looking for ways to prevent those effects rather than approving multiple permits, filling hundreds of miles of streams, and then announcing that it doesn't know what the effects of doing that are.

The same flaw dooms the Committee's proposal of arbitration panels to resolve blasting damage claims. While it may sound like a quick and easy way to get damage claims resolved, it has the same flaw as does the Bureau of Community Impact. The orientation of DEP is so markedly in favor of the coal industry that it is unlikely that a citizen could get relief.

For an indication of how well such a panel would serve citizen interest, we have to look no farther than the current Reclamation Board of Review. In theory, it provides a forum for citizens aggrieved by DEP permitting decisions. In practice, the Board almost never finds in favor of citizens.

The Committee's suggestion that there be a legal presumption that damage to nearby water wells resulted from the mining is a sound one. It should be extended to all property damage, not just water wells.

As appealing as the idea of creating a Bureau of Community Impacts is, it will not work as a part of the Division of Environmental Protection. That agency has such a long, unblemished record of serving the interests of the coal industry that it is unreasonable to assume that a Bureau of Community Impacts housed there would be any more effective in protecting communities from adverse impacts.

The only way that the Bureau of Community Impacts has a chance of being effective is if is both independent of DEP and has the power to make binding recommendations on permit decisions. Unless it is independent of DEP, it will inevitably be swallowed by a DEP which has no history of enforcement and no history of making any demands upon the industry.

Unless it has the power to make binding recommendations on permit decisions it will be ignored. The state is most powerful vis a vis the coal industry when a permit application is pending. If we wish to require that a company diminish its impact upon the community, there is no time when the state could do that more effectively than in permitting. If we have an independent Bureau of Community Impacts with the power to make binding recommendations, then there is a realistic possibility that the company will actually have to do something to benefit the community. If the Bureau is either a part of DEP or lacks the power to make binding recommendations, DEP's historical orientation assures that the recommendations will be ignored.

COMMITTEE ON THE ENVIRONMENT

This committee had a daunting task. It began with the DEP--the agency one would expect would have considered the question--announcing that it had no idea what the environmental effects of this type of mining would be. From there, it was given less than six months to determine the answer to this complicated question. It is no wonder that its recommendations are almost entirely for further study.

The report does contain some incorrect legal and factual assumptions as well as a policy assumption that, when stated bluntly, calls into question both the Committee's commitment to further inquiry and the State's commitment to environmental protection.

There are two striking legal and factual assumptions that are not true. The first is that eadwater streams have no environmental value and that they are entitled to no legal protection. This is not true. Headwater streams are protected waters under both federal and state Clean Water Acts. As such, they cannot be filled with waste material. It is undisputed that these streams are, in fact, being filled. To conclude that there is no illegal activity going on is to ignore the facts.

One can only assume that such streams may be filled with impunity if one assumes that they have no ecological value. This is not true. There is abundant evidence that these streams contain aquatic communities that are an important part of the entire watershed ecosystem. This is, as a matter of law, a beneficial use of the stream which must be maintained. To assume, as the report does, that we can destroy this beneficial use ignores the law.

The second striking assumption is that the word "approximate" in the term "approximate original contour" has a meaning that is so flexible that it is meaningless. State and federal law requires that after mining the land be returned to its "approximate original contour." While there is no definition of "approximate" in the law, it has to mean something. One would assume that it means something similar to its ordinary meaning. In its ordinary usage, it means reasonably close but not absolutely accurate. We would say that Morgantown is approximately 150 miles from Charleston. We would say that there are approximately 1.8 million people in West Virginia.

At one time, the Division of Environmental Protection had a policy in which "approximate" meant within fifty feet. While that might not fit everyone's definition of "approximate" it was a workable definition.

The Committee has suggested an approach that stretches the word "approximate" to the point that it is meaningless. Under its analysis, post mining land could be hundreds of feet below pre-mining land. It would still be approximate original contour. Under such an analysis, you are approximately 30, Princeton is approximately in the center of West Virginia, and cricket is approximately more popular than NASCAR in West Virginia.

While the Committee's candid recognition of the its lack of knowledge and the need for more study shows a certain intellectual honesty, the policy recommendation inherent in its conclusion is disturbing. It recognizes our collective lack of knowledge. Yet at the same time, it says nothing about continuing to grant permits while we study the problem. Does this mean that we don't care what the studies show? If they show that the long term environmental effects of mountaintop removal mining are a disaster, what difference will it make? Unless we stop granting permits until the studies are finished, the results will make no difference. The damage will have been done. It is not that different from allowing a convicted criminal to pursue an appeal after he has already been executed.

It is equally disturbing that the state accepts this policy of allowing permitting to continue while studies continue. If we are committed to environmental protection, how could this be? If we genuinely wanted to avoid environmental damage, wouldn't we study the effects before granting any more permits?

If we wish to conduct an inquiry into the effects that would have some meaning, it should recommend that there be no more permits issued until the studies are complete.

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