Breaking news: Court settlement will force WVDEP to properly treat water pollution at old mine sites

August 2, 2011 by Ken Ward Jr.

I’ve just received word that three citizen groups have reached agreement on a court settlement that, if finalized, will force the West Virginia Department of Environmental Protection to greatly improve the treatment of long-term water pollution runoff at dozens of old coal-mine sites across our state.

Earlier today, lawyers for the West Virginia Highlands  Conservancy, the Rivers Coalition and the Sierra Club filed the proposed settlement in federal court here in Charleston. A similar proposed settlement is expected to be filed in U.S. District Court for the Northern District of West Virginia.

The deal concerns ongoing litigation the groups filed against WVDEP over the agency’s long-standing practice of not treating pollution from sites covered by the state’s Special Reclamation Fund so that the discharges would not cause water quality violations.

Keep in mind that these sites are not part of the federal Abandoned Mine Lands program, and are instead operations that the state took over — after the operators went belly up or walked away — since passage of the 1977 federal strip-mining law.

Over the years, the special reclamation program has never had enough money. Thousands of acres of abandoned mines sat unreclaimed. Hundreds of polluted streams went untreated.  Historically, the fund had 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.

Citizen groups have had to go to court just to get WVDEP to actually treat water pollution at these abandoned sites, and their latest legal effort was aimed at forcing agency officials to put in place treatment that would actually comply with permit limits and water quality standards.

Readers may recall that federal judges in two different districts — Judge John T. Copenhaver here in Charleston and Judge Irene M. Keeley in the nothern district — have ruled against WVDEP on this issue. WVDEP’s outside lawyers also lost an appeal of the matter to the 4th U.S. Circuit Court of Appeals.

So now, WVDEP officials have agreed to settle the case.

Under the deal, WVDEP will by mid-August have to provide the citizens with a draft inventory of special reclamation sites with water treatment. A final list will have to be provided by mid-October.

Then, over the next four years, the WVDEP will have to come up with permits — containing enforceable water pollution limits, aimed at meeting water quality standards — for at least 171 special reclamation sites across the state.


Cindy Rank, mining chair of the West Virginia Highlands Conservancy, said today:

The state was running these sites ‘off the books’ to try to escape accountability for necessary water treatment. Now that they are properly ‘on the books,’ WVDEP will calculate, for the first time, the full treatment costs at these sites. We have been asking for that calculation for over twenty years.

Jim Hecker, environmental enforcement director for Public Justice, which represented citizen groups in the matter, said:

By not obtaining permits or complying with required standards, DEP significantly underestimated the costs of treating acid mine drainage at these sites. The special reclamation fund for water treatment will now need to be increased to account for the full cost of meeting treatment requirements at all sites.

This settlement comes are citizen groups are also trying to reopen their litigation against the U.S. Office of Surface Mining Reclamation and Enforcement, in an effort to push OSMRE to require the state to increase coal taxes to adequately fund the special reclamation program. A status conference on that matter is scheduled Friday before Judge Copenhaver.

Joe Lovett, director of the Appalachian Center for the Economy and the Environment, and another of the citizen group lawyers, said:

It’s important that the bond fund be increased as soon as possible. Coal mining will decline as resources are depleted, but the money needed to treat polluted water will remain constant or even increase. Unless we act now to build an adequate fund, the last mining company and ultimately the public will be left holding the tab for an enormous bill.

WVDEP has also issued a news release on this settlement, in which agency Secretary Randy Huffman said:

I’m pleased the agency was able to reach an agreement with these organizations regarding the timing of issuing permits for such a large number of sites.


6 Responses to “Breaking news: Court settlement will force WVDEP to properly treat water pollution at old mine sites”

  1. Soyedina says:

    sounds like jobs!

    any info on those “special reclamation” sites? Range of acreage, how many are in southern WV, etc?

  2. Rory McIlmoil says:

    Here’s what was written in our “Impact of Coal on the West Virginia State Budget” report, page 52:

    “Of the 326 bond forfeiture sites documented in West Virginia, ten new ones were added in FY2009. Also during FY2009, West Virginia completed land reclamation on 15 bond forfeiture sites and installed water treatment systems on eight sites, with nine more under construction. Still, 49 bond forfeiture sites have water quality-related off-site impacts (OSMRE, Undated). Despite the fact that the special reclamation tax is not supposed to be reduced until sufficient funds are in hand to pay for future reclamation work, there is still debate about whether these funds will be sufficient, especially if greater numbers of operators forfeit their bonds in the future.”

    And our associated recommendation, page 62:

    “Ensure that funds for reclamation and water treatment are sufficient for meeting all present and future needs. While general revenues are not currently used for reclamation on bond forfeiture sites or abandoned mine lands, there is a significant likelihood that current funding streams will not be sufficient to meet all present and future needs. If and when shortfalls occur, there will be a need to find alternative sources of funding, and one potential source is the GRF. To prevent this from happening, we recommend that when the special reclamation tax comes up for review, the Legislature should ensure that the tax rate is adjusted so as to provide sufficient revenues for ensuring all bond forfeiture sites are reclaimed to their intended post-mine land use, at a minimum, and that water runoff is treated so that discharges consistently meet their original NPDES permits and do not contribute to water quality standard violations. Additionally, we recommend that the Legislature explore mechanisms for generating new sources of revenue sufficient for making up for funding shortfalls expected to exist if abandoned mine land funding expires in 2022.”

    And for those interested in Abandoned Mine Lands, which are different from bond forfeiture sites as Ken describes, we have a map of the AMLs in West Virginia on page 53.

  3. Ken Ward Jr. says:


    The settlement document link, includes a list of the 171 sites and their locations. Keep in mind that this settlement is about water treatment, not land reclamation.


  4. Bob Henry Baber says:

    Once again, we find the State of West virginia in peril for being left holding the expanding bag–or should I say water balloon–for coal related pollution.

  5. Cindy Rank says:


    As Ken says, this particular settlement pertains to water treatment the state has avoided at ‘recently’ [i.e. AFTER the 1977 Act went into effect]forfeited mine sites where the companies never finished reclaiming and left bond monies often less than sufficient to even do land reclamation.

    And though the state has ignored what we consider (and the courts have agreed) its responsibility to adequately treat the water flowing from these sites the WVDEP now has – due in significant part to previous somewhat related litigation – a fairly comprehensive list of those forfeited sites where lands were left untended and have been steadily addressing that land reclamation.

    Throughout the process the aspect of water treatment has been woefully inadequate. And though the Special Reclamation Fund may be sufficient to pick up most of the land reclamation now on the books, proper water treatment costs represent additional financial liabilities that must be addressed — by the state, by the legislature, by increasing the special reclamation fee on every ton of clean coal produced in this state.

    Speaking for one of the plaintiff groups who have since the late 1980’s been pushing for action to adequately treat water flowing from these sites we’re hopeful that this settlement will move us ahead on this score as well.

  6. Pragmatic Realist says:

    Let’s hope that they don’t end up having to sue the WVDEP to enforce the settlement. That would be about par for the course.

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