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.