Coal Tattoo

WVDEP loses another coal mine pollution case

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A second federal judge has ordered the West Virginia Department of Environmental Protection to clean up the way it cleans up abandoned coal mine pollution.

U.S. District Judge John T. Copenhaver Jr.  yesterday ruled that WVDEP must obtain permits for the abandoned mine sites it maintains under the agency’s Special Reclamation program.

Essentially — and very importantly — this means that WVDEP is going to have to set pollution limits for these sites, and improve the treatment being used so that discharges from abandoned mine sites meet the state’s water pollution limits.

Earlier this year, U.S. District Judge Irene M. Keeley issued a similar ruling in West Virginia’s northern district. Copenhaver’s decision covers the state’s southern coalfields, and specifically addresses three sites at issue in the case brought by the West Virginia Highlands Conservancy and the West Virginia Rivers Coalition.

This ruling is also the second time in a week that Judge Copenhaver has ruled against WVDEP in a significant Clean Water Act case. Last week — in a matter that WVDEP wasn’t even a party to — the judge concluded that the agency’s secret deals with coal operators do not prohibit citizens from bringing their own pollution enforcement lawsuits.

Jim Hecker, environmental enforcement director at Public Justice and lead counsel for the citizen groups, said this morning:

The State was running these three sites ‘off the books’ to try to escape accountability for necessary water treatment. Two district courts have now ordered the State to obtain the required discharge permits for 21 bond forfeiture sites. Once it does, the State will have to comply with the water quality standards it is now violating.

The Special Reclamation program, required by federal law, aims to clean up coal mines abandoned since  passage of the 1977 Surface Mining Control and Reclamation Act. Mines abandoned before then are covered by a separate program, also mandated by the 1977 law and funded by coal industry taxes.

Over the years, the Special Rec program has never had enough money. Thousands of acres of abandoned mine sat unreclaimed. Hundreds of polluted streams went untreated.

Historically, the fund has been short of money because coal operators had not posted reclamation bonds sufficient to cover the true cost of mine cleanups at sites they abandon. A state tax on coal production was never set high enough to cover the difference.

For more background, see here, here and here.

WVDEP has made improvements in the program, but an advisory council report issued in March projected the fund could go broke by 2012. Lawmakers later approved a Manchin administration proposal to continue for one year the special coal industry tax that funds the cleanups — but the administration bill did not go as far as recommended by the advisory council, which thought the tax should be increased form 14 cents per ton to 20 cents per ton.

Today, the WVDEP operates water treatment systems at dozens of abandoned mine sites. But WVDEP does not reduce the pollution from those sites enough to meet water quality limits, and does not obtain Clean Water Act permits for the site discharges.

The rulings by Keeley and Copenhaver will change that.

But the rulings are far from final. WVDEP Secretary Randy Huffman and the Manchin administration are appealing Keeley’s decision to the 4th U.S. Circuit Court of Appeals. In a brief filed Monday with the Richmond, Va.-based court, WVDEP General Counsel Ray Franks argued that Keeley’s ruling “threatens a raid on the treasury” of the state. Franks also sounded a litte bit like another WVDEP lawyer, Fenway Pollack, who argued to the state Surface Mine Board that no mining operation in West Virginia could ever avoid violating water pollution rules.

According to Franks’ brief to the 4th Circuit:

Once a permit is issued that contains the CWA’s more stringent water quality standards for iron and manganese, all the credible record evidence indicates that WVDEP will find it impossible to live up to them.

When the discharge monitoring reports show exceedances, WVDEP’s Environmental Enforcement section will have little choice but to issue notices of violation  … just as it does to corporate mining operators. The violations will be followed up with orders or settlement agreements imposing monetary fines, penalties, or assessments against WVDEP.

But in the end, Franks concedes that compliance could be achieved — if WVDEP spends enough money on pollution treatment at the sites.

If WVDEP is forced to obtain NPDES permits for its treatment efforts at 18 orphaned mine sites, the agency’s resultant inevitable failures to meet the water quality standards thereby imposed will expose it to seriatim citizen suits, or, perhap more likely, a reopening of this one.

Should the citizen-plaintiffs prevail, WVDEP will either have to stop all treatment at the subject sites (so that it may cease and desist ‘discharging pollutants’)  or expend the necessary additional funds to bring the sites into compliance.

Of course, the West Virginia Supreme Court ruled 15 years ago that WVDEP has a mandatory duty to use money from the Special Reclamation Fund to treat water pollution from abandoned mine sites.  And money in that fund comes from the coal industry. As Joe Lovett, co-counsel for the citizen groups and director of the Appalachian Center for the Economy and the Environment, said:

The State will have to increase coal taxes by large amounts to pay for these pollution control improvements. The court’s ruling will require WVDEP to stop protecting the coal industry from the paying the full environmental costs of coal mining.