West Virginia Mine Regulators Slow on Inspections, Permits

By LAWRENCE MESSINA | July 27, 2012

West Virginia mine regulators have failed to meet internal goals for timely inspections and permits, a legislative audit concluded, but agency officials disagree with the auditors over why.

The report released Tuesday to lawmakers blames vacancies and turnover for the delays at the Division of Mining and Reclamation, part of the Department of Environmental Protection. But Division Director Thomas Clarke chiefly faults heightened scrutiny by the U.S. Environmental Protection Agency since President Barack Obama took office in 2009.

“They are trying to substitute themselves for the state’s rightful position in interpreting the state’s water quality standard,” Clarke told a joint meeting of House-Senate committees.

The EPA’s regional press office did not immediately respond to requests for comment Tuesday. Auditors said they could not verify Clarke’s statement in time for the report, but plan to review information from his agency for a follow-up.

Both sides did agree that a surge in Freedom of Information Act requests also plays a role. A separate audit, meanwhile, found that the department continues to suffer from poor record-keeping of mining permits and whether coal operators have filed the required bonds.

Clarke’s agency considers the ideal would be to inspect active mine sites monthly and inactive ones quarterly. While it hit that target 90 percent of the time in 2008 and 2009, the agency’s performance fell to 82 percent in 2010, auditors found.

“A drop in inspection frequency can have significant environmental and safety impacts,” the report notes.

The time it took to process permits increased during the four-year study period, the report said. The agency aims to decide 75 percent of surface mining and National Pollution Discharge Elimination Systems permits within a 12-month period. It did so just 55 percent of the time in 2009 and 45 percent in 2010, the report said.

Auditors cite agency staffing. Vacancies in the 64-position permitting unit averaged 14 percent between 2008 and 2011, and a total of 14 staffers left the unit during that time. With 100 or so slots, the agency lacked an average of six inspectors during that time with turnover affecting a total of 30 positions.

“It’s not a hiring freeze,” explained John Sylvia, director of the Legislature’s Performance Evaluation and Research Division. “In many cases, these positions are available; they’re having a hard time filling them. When you have these positions and this turnover, you’re trying to keep up with the turnover and also deal with positions that have been open for quite a while. It’s simply a case of not being able to hire the people.”

Clarke agreed that these are a factor. He cited how the department had greatly increased its staffing in the early 1980s, when federal regulators began shifting oversight to states.

“Now we’re coming to the point where people who have made a career out of that work are at retirement age,” Clarke said. “We have about 40 percent of our division eligible to retire in the next five years.”

He also told lawmakers that the industry lures away well-performing staff with better pay. But Clarke reserves blame mostly for EPA, tracing the delays to that agency’s decision in July 2009 to resume scrutiny of pollution permits for surface mines. EPA had previously waived that oversight since 1982.

The EPA has since provided conflicting guidance to state regulators, while seeking to require them to meet with multiple federal agencies regarding surface mining operations. West Virginia has sued over some of these practices, Clarke reminded the legislators.

Clarke said permits issued in 2008 took 231 days on average to process, a slight increase from the prior year. That turnaround time lengthened to an average of 515 days for permits issued last year, he said.

“We attribute most of that to EPA’s involvement with the interjection of these new issues, some to the process, and some to increased involvement of the environmental community,” Clarke said.

The latter is reflected by a rise in FOIA requests, Clarke said. Tuesday’s report counted 318 requests in 2008, 708 in 2011 and 431 this year as of June. Such public scrutiny plays a role in the delays, audit analyst Keith Brown told lawmakers.

Brown also said that auditors noted Clarke’s views in the report, but did not alter their findings. They will instead review materials recently provided by his agency for a future report, Brown said.

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