The State of the States in Environmental Dispute Resolution:
WEST VIRGINIA

Status:
West Virginia does not use a formal EDR mechanism for addressing environmental disputes. Instead, the Division of Environmental Protection (DEP) relies on a system of informal negotiation in which people or businesses can talk with environmental managers and resolve problems before they go to court or are adjudicated. About seventy percent of cases are settled using this approach.

Legal Authority:
W. VA. CODE §§ 55-10-1 to -8 (1994) (authorizing the use of arbitration agreements and establishing law governing the validity of and procedure used in arbitrations); W. VA. CODE §§ 55-15-1 to -6 (Supp. 1998) (establishing the West Virginia Alternative Dispute Resolution Committee and charging it to study the field of ADR and report by November 1998 to the legislature with any proposed legislation and any recommendations).²³

Contact Information:
     Bill Adams, General Counsel
     Office of Legal Services
     West Virginia Division of Environmental Protection
     1356 Hansford St.
     Charleston, WV 25301
     Phone: (304) 558-9160
     Fax: (304) 759-0526

Program Summary

West Virginia does not use formal EDR mechanisms for addressing environmental disputes. Instead, the DEP relies on a system of informal negotiations in which people or businesses can talk with managers and resolve problems before they go to court or get officially adjudicated. These negotiations result in binding consent orders where appeal rights are waived and the parties can be taken to court if they fail to comply with the consent orders. The program is informal but systematic. The DEP makes an effort to use the same standards with different companies within the same industry. By negotiating with willing companies, the DEP is able to focus its limited resources on the most contentious cases. There is little support within the state legislature or within the agency for formal third-party mediation or negotiation. Indeed, there is concern that this could strain relationships between the DEP and the regulated community. One circuit court (Kanawha County) requires all parties in a civil suit (including environmental cases) to submit to court-ordered mediation before trial. The DEP has been a third party in two cases that have gone through mediation, but neither case reached settlement. Approximately seventy percent of the DEP’s cases are settled through negotiation. In about twenty-five percent of negotiations the DEP needs to either sue or renegotiate the agreement at a later date.

• Informal negotiations work when the DEP has room for reflection and discussion and the discretion to make agreements.
• Informal negotiation lets the DEP see a company’s attitude and react accordingly. "Companies build and lose credibility with us. We learn who the bad guys are, and we don’t compromise with them after they’ve burned us once or twice." The DEP is reluctant to use formal EDR processes because they may lose this flexibility.
• Sometimes the informality of the negotiation process lets the regulated community believe that they do not need to abide by negotiated agreements. The DEP needs to remain vigilant to prevent this.
• Sometimes the public is not happy with the DEP informally negotiating with violators.
• Both companies and the DEP like the informal negotiation approach—companies can work toward compliance without shutting down or simply ignoring the laws.

People

Jay Lazell, Deputy Chief, Office of Legal Services, West Virginia Division of Environmental Protection, 1356 Hansford St., Charleston, WV 25301, Phone: (304) 558-9160, Fax: (304) 759-4255.

Publications

Further information about the West Virginia Division of Environmental Protection is available at the following Website: http://www.dep.state.wv.us

23   Additionally, many state environmental laws have language supporting informal conferences. See, e.g., W. Va. Code § 22-22-7 (1998) (providing that a "voluntary remediation agreement may also provide for alternate dispute resolutions between the parties to the agreement, including, but not limited to, arbitration or mediation of any disputes under this agreement").

Indiana Conflict Resolution Institute
Last updated: June 1999
Comments: ICRI Administrator
Copyright 1999 - Indiana University, Bloomington