New legislator has plan to bypass EPA coal permits

Dec 13 - McClatchy-Tribune Regional News - Mannix Porterfield The Register-Herald, Beckley, W.Va.

Right out of the gate, a new legislator wants to revolutionize the permitting process by exempting West Virginia coal used in this state from the under-fire Environmental Protection Agency.

And freshman Delegate Gary Howell, R-Mineral, says the federal and state constitutions back his idea.

"The EPA gets its authority from the interstate commerce clause, and where no interstate commerce exists, they have no jurisdiction," Howell says.

Such rights of states to regulate businesses not engaged in interstate commerce are reserved in the Ninth and 10th Amendments, he says, and those are reinforced under the West Virginia Constitution.

His bill would not limit such exemptions from EPA scrutiny merely to coal that is produced and burned within West Virginia's border.

"Obviously, we make coke and some other products, and there are the coal liquefaction plants, too," he says.

"They would also be covered under this. That coal is chemically altered and becomes a different product at that point. You're not sending the coal out of state. The new product would be regulated. It's just the process of getting the coal out of the mine, getting it to the plant, would not be regulated. That is not interstate commerce. That is intrastate."

Howell said his proposal wouldn't mean that environmental rules are compromised, since mines would be obligated to meet all the permitting requirements.

"Under my bill, they still would have to meet the exact same requirements as the federal EPA," he said.

"They just get issued a state permit instead. That way, our environment is still protected."

Thirty-eight mines in West Virginia are in limbo with EPA permits pending, he said, and since most are union, the lawmaker feels he can attract labor's support. The running feud between state operators and public officials with the EPA has been well documented. Just recently, acting Gov. Earl Ray Tomblin told The Register-Herald that the delay in getting permits issued has been frustrating for investors when uncertainty exists that an operation will be approved.

Howell said the number of mining installations that would be free of the EPA under his legislation can be tracked.

"You've got corporations like ICG and Massey, wherever, if they've got a mine operating currently with a federal permit, and they're supplying it totally to a West Virginia power plant, then they look at that and say, 'We've got this other mine and we can't get our EPA permit, so we've got a contract with a company in Ohio.'"

The firm could use the EPA to keep the customer satisfied in Ohio, then open a new mine to supply its clientele in West Virginia.

Howell says it's not uncommon for new legislators to look for novel ideas to deal with difficult problems.

"With new members of the House and Senate, and Congress for that matter, we bring new ideas to the table," he said.

"We look at things differently. Sometimes we do things just because we've never been told not to."

Howell owns Howell Automotive in Keyser, a mail order auto parts company. Seven years ago, the firm was named the 2003 exporter of the year in West Virginia by the Small Business Administration.

"We ship stuff all over the world," he said.

Howell is confident his measure can gain the support of Republicans and Democrats alike once the 2011 session opens.

"There is no real left or right to this issue that I see," he added.

-- E-mail: mannix@register-herald.com