The Register-Herald, Beckley, West Virginia

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January 17, 2011

Bill that would circumvent EPA coal permits to be introduced

CHARLESTON — A West Virginia bill to be introduced early this week aims to give a state agency the power to grant some coal mining permits and circumvent stalling by the EPA.

The bill would give the West Virginia Department of Environmental Protection the authority to grant permits to coal mines that sell their coal for use only within state borders. The bill is being introduced by Delegate Gary Howell, R-Mineral, and he said he has the maximum number of co-sponsors behind the bill.

“See, with the EPA, there’s regulations. They are not actually laws,” Howell said. “They never go through Congress and are never voted on by our representatives. That creates soft tyranny because we have no choice in the matter.”

The bill was filed by Howell on Friday and awaits final approval by each of the sponsors before it is introduced in the House, which is expected as soon as today.

In the past two years, nearly 80 surface mining permits were reviewed by the EPA, but only nine were approved. A spokesperson for the EPA explained that some of those permits were withdrawn and many remain under review.

“They’re using the right to review to deny the permits without really denying them,” Howell said. “They just keep them in a constant state of review so they never move forward.”

The Intrastate Coal and Use Act would strip the EPA of its right to review permits for intrastate coal operations. The regulatory requirements established by the Clean Water Act, Howell said, would still be enforced, but by WVDEP instead.

“I’m a conservationist. I understand that in a modern world, we have to use the environment, but we have to protect it at the same time,” Howell said. “The Clean Water Act gives us specifications for water. In some cases the EPA is trying to say the water has to be cleaner than before it flowed under your property, and that doesn’t make any sense.”

Environmentalists, Howell said, are not bad people, but an extreme and often vocal contingent of the group seem to have seized control of the EPA and the Obama administration.

“There’s a lot of good people who care about the environment, but there are some out there on the extreme fringe that don’t want us to have electricity; they don’t want us to use cars,” Howell said. “Basically, they want us to live in the caveman days.”

He said often, the EPA has overstepped its authority in West Virginia coal matters. Several West Virginia lawmakers have been recently coming out against the EPA. Then-Gov. Joe Manchin recently filed a lawsuit against the EPA for similar actions.

Howell said this bill will move the process along quicker.

“Court cases take years and years,” Howell said. “If this bill passes the House and then passes the Senate, as soon as Gov. Earl Ray Tomblin signs it off, this is the law and those mines can open up immediately and we aren’t waiting on court.”

Howell said he is utilizing the U.S. Constitution’s Ninth and 10th amendments that guarantee states and their people the powers not enumerated in the Constitution. The interstate commerce clause that gives federal regulators authority over environmental issues would not apply to intrastate commerce, he said.

The bill also requires that a sample from every vein of coal and every West Virginia source used at a facility producing a chemically altered coal product would be placed on record at the WVDEP to verify West Virginia origin of the state’s coal products. The law would affect not only coal, but all of its chemically altered products.

“I think it has a very good chance. I think with the EPA doing what they did with Spruce Mine No. 1, it actually helped the bill,” Howell said.

Last week, the EPA used its authority under the Clean Water Act to halt Spruce Mine No. 1, the largest proposed surface mining project in West Virginia. The outright denial of the permit was only the 12th such case since 1972.

The EPA announcement provoked a negative response from several lawmakers, including Congressman Nick Rahall, Sen. Joe Manchin, Sen. Jay Rockefeller and Gov. Tomblin.

The bill has the maximum number of co-sponsors in the West Virginia House and includes Howell, Delegate Linda Sumner, R-Raleigh; Delegate Ray Canterbury, R-Greenbrier; Delegate Carol Miller, R-Cabell; Delegate Kelli Sobonya, R-Cabell; Delegate John N. Ellem, R-Wood; Delegate Mitch Carmichael, R-Jackson, and Walter E. Duke, R-Berkeley, Finance Chair Harry Keith White, D-Mingo; Steven Kominar, D-Mingo, and Rupert Phillips Jr., D-Lincoln.

Howell pointed out he has bipartisan support of the bill.

Though the EPA is likely to challenge the Intrastate Coal and Use Act, Howell said, the proposed legislation “absolutely passes Constitutional muster.” He said the Goldwater and Cato Institutes have reviewed the bill and find it appropriate under the terms of the U.S. Constitution.

The American Legislative Exchange Council, Howell said, wants a copy of the bill for consideration as a piece of model legislation.

“If we don’t exercise our rights, we essentially lose them,” Howell said. “This will make West Virginia a stronger state. It will make us a better place to do business. It all comes back to doing what’s best for the people of West Virginia.”

Howell said the West Virginia Coal Association estimates the EPA’s delay in permitting has cost the state between 500 and 1,000 direct coal mining jobs. He said what he is proposing “truly is a jobs bill for West Virginia.”

— E-mail: tkuykendall@register-herald.com

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