Brittany Patterson Published

Court Says Lawsuit Against W.Va. DEP Over Mine Reclamation Fund Can Proceed


A federal court has ruled that a lawsuit brought by environmental groups over West Virginia’s coal mine reclamation fund can continue.

In an order issued Friday, U.S. District Judge Robert Chambers dismissed a request by the West Virginia Department of Environmental Protection to toss the July lawsuit filed by environmental groups.

The three organizations — the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club — argued the state agency violated federal mining laws when it failed to alert federal mine regulators it was putting more than 100 mining permits controlled by one company — ERP Environmental Fund— into a special receivership in order to avoid forfeiting the permits to the state.

The groups noted that the move, as well as recent bankruptcies of Murray Energy and Blackjewel Mining L.L.C., jeopardized already inadequate funds the state relies on to clean up coal mining operations when companies walk away. Under the Surface Mining Control and Reclamation Act, state regulators are required to inform the Office of Surface Mining, Reclamation and Enforcement, or OSMRE, when there are significant changes to the state’s coal mine cleanup program, including financial changes.

According to documents filed by the DEP earlier this year, the state’s Special Reclamation Fund would be “overwhelmed” if ERP’s permits were forfeited. The agency said the company has an estimated $115 million in bonds, but it would cost at least $230 million to remediate all of the company’s operations. The difference would fall to the reclamation fund.

According to a Jan. 9, 2020 report to the West Virginia Legislature, as of Sept. 30, 2019, the Special Reclamation Fund had just over $58 million in cash and investments. It is funded by a 12.9 cent tax per ton of coal mined in West Virginia.

State regulators asked the court to dismiss the suit for a myriad of reasons, all of which the court denied. In a statement, the Sierra Club said it expects the case to eventually go to trial.