CHAPTER 8 PROBLEMS OF COMPARTMENTS IN POLITICS AND THINKING: THE POLITICAL GAMES THEY SUPPORT AND THE ECONOMIC ISSUES THEY DISGUISE FOR THE COAL INDUSTRY

• Jurisdiction: United States

Western Coal Development
(Mar 1973)
CHAPTER 8
PROBLEMS OF COMPARTMENTS IN POLITICS AND THINKING: THE POLITICAL GAMES THEY SUPPORT AND THE ECONOMIC ISSUES THEY DISGUISE FOR THE COAL INDUSTRY
Daniel M. Hall
Assistant Secretary and Assistant General Counsel Peabody Coal Company

Gentlemen: My subject is undoubtedly one not seen before on a legal program such as this. So, it does need some sort of introduction.

First, it is obvious that I am intending to talk about legislative problems of the coal industry. This is like making a brief discussion of an avalanche, while standing in the middle of it. But work we must, or the avalanche will overwhelm us, and I have become convinced that the coal industry in the West must become much more cogent and sophisticated as to its position in our system of constitutional government. So I have also become convinced that we must first view our situation within the compartments of the States as a basis for assessing the impact of coming federal legislation or surface mining. That legislation will—I fear -be bad and its results not what its sponsors intend.

In trying to survive the recent rash of state legislation and administrative changes, Peabody has learned a few lessons which we are willing to share with you. And maybe we can even make some valid judgments as to where we are heading, and the Odyssean problems lying in wait along the legal road.

The ideas which I will state aren't extremely unique. I only hope to be helpful in pointing out some important patterns, and to put some different face on some common experiences. We have all separately seen the matters which I will discuss. But if we back off far enough, I think that there will be a new light cast upon a number of things.

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I think it is clear that there is an emerging pattern of legislative conflict such as we have not seen in this country since the early quarter of this century. Unfortunately, we in the coal industry are in the vanguard of this conflict, because of our spectacular visibility. If anything can visually illustrate the figure of industry consuming the resources of the country, it is a 140-yard bucket scooping up overburden.

The basic point, I think, to grasp is almost inanely simple to state: This nation is going through a deep and significant change in public policy in at least two areas. These are the use of raw materials in production (environmentalism or ecological concern), and how the products of this business can be marketed (consumerism). This may be obvious—once said. But is is an easy idea to slight. Policy changes of the magnitude implied by the Federal Water Pollution Control Amendments of 1972 require all the deliberation and careful management which we can muster.

The failure of the proponents of surface mine regulation to keep this responsibility in mind allows them the luxury of evangelical tirades and crusades against us as inherently bad people. But only effective work by all of us will get the job done, if the public is really serious about meaningful changes in the methods of coal mining.¹

The magnitude of the coming changes may well match the changes of the New Deal in the 1930s. In making this kind of a revolution, it is the American way to lose our way, to lose sight of our big

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policy goal. Further, we equip ourselves with a most peculiar instrument for making these changes: the U.S. Constitution. Under it we have the most effectively compartmentalized governmental system in the world. We exist in 50 separate states, which are even today, in many respects, as sovereign as the separate nations of the world. Above this system, of course, is the separate federal domain of navigable water and interstate commerce.²

But as an industry, in dealing with this compartmentalized government, we seldom insist upon public awareness of our industry as a part of the vertical organization of the electrical utility business. Recently in a meeting of a Missouri Governor's Task Force considering the problems of environmental impact statements, we were conferring with the successful sponsor of both the current air pollution and water pollution statutes in that state. I mentioned the almost impossible problem of trying to prepare an impact statement covering only part of a vertically organized industry. "What," said the former legislator and champion of ecology, "is a vertically organized business...?"³

The result of this system is that in most matters, we are content to let reform or policy changes bounce around at the state level upon a very poor balancing of local and interstate issues. When the proponents of change harry together enough votes to seriously disrupt business or governmental functions, then Congress

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has usually asserted the overriding interest in national unity and interstate commerce with a massive legislative pre-emption of control of an industry, and the establishment of a massive new Federal bureaucracy.⁴

So now we can narrow our subject matter a bit:

1. How do we stand in this peculiar American process of reform?

2. How will we fare as an industry in the future? What further state experimentation can we expect? Will Congress assert unity in a sort of New Deal Renascent?

First, what is our present status in this peculiar American constitutional procedure: The so-called experimentation by the states.

We stand in pretty bad shape, because of what I call the Kentucky Syndrome. This is the flow from East to West of irrelevant ideas and regulations — and, our own frequent failure to anticipate it, or even to appreciate it when its product of bad regulation is whirling around our ears.

A recent example of this Syndrome was in Kentucky's promulgation of its first mine drainage regulation under its 1965 Strip Mine statute.⁵ Two key requirements were that all surface drainage be diverted, and that all drainways be conduited across the working area. This language was, I believe, created as a handy and useful set of words for Appalachian bench mining. Peabody, which

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mines in Western Kentucky by area methods, quietly blew its collective mind. From a simple diagram the problem is obvious:

Conduits in bench mining are no greater problem than culverts under a road. The same words in area mining require a Roman Aquaduct across a huge pit traversed by a towering machine 200 feet high. The result is an absolute impossibility.

The same way with diversion ditches for all surface water. In bench mining, the diversion parallels the working mine and can be extended with mining. In area mining, the work progresses into whatever slope there is in the terrain, and progressively rips out whatever diversion ditches are built above the highwall. Again, the result is an impossibility.

Well, a knowledgeable Kentucky official looked at a written version of our objections and said "O.K., I see your problem. We've written a set of regulations for Eastern Kentucky and you mine in Western Kentucky. Well, we can do something about that." And they did, by simply allowing some room in the regulation for variations for Western Kentucky terrain.

But, after you leave West Virginia, Kentucky and Pennsylvania

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and the area of the Appalachian Regional Council, your supply of knowledgeable officials drops drastically, and our only protection becomes our own ability to recognize the Kentucky Syndrome and to speak out against it, and here our abilities are peculiarly lacking.

The next drastic attack of the Kentucky Syndrome was before the Illinois Pollution Control Board when Illinois first attempted to promulgate mine drainage regulations under its water pollution statute.⁶

A young activist-type attorney drafted the regulations. He blatantly borrowed Pennsylvania's regulations. The Kentucky drainway language showed up again. No member of the Board or of its staff appreciated the differences in terrain between Appalachia and the Midwest coal field. Coal industry representatives for almost a day spoke against the measure, plus others, without ever succeeding in getting the Board and staff to understand the problem. In appropriate questions were asked. Industry witnesses, assuming that Board members understood the significance of the technical words being used, made misdirected answers. I finally asked our own technical spokesman to explain the difference in bench and area mining as to drainways. Although one of our best and knowledgeable men on such matters, he still didn't appreciate the existence of the Board's lack of understanding of the basic physical differences. I finally was reduced to having myself sworn as a witness to make the little pictures I have shown you here.

Another symptom of the Syndrome is a key aspect of legislative language becoming popular in the West — "Appalachian Backfill

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Contour Line." You might as well memorize it, for it will be passed up and down the high plains now, as states experiment to see who can get the "toughest" statute.

This contour is expressed in statutory language as "beginning at or beyond the top of the highwall and sloped to the toe of the spoil bank at a maximum angle not to exceed the approximate original contour of the land with no depressions to accumulate water..." and so...