Mine Reclamation, Clean Water and Broadband: What the Infrastructure Law Brings to Appalachia

The bipartisan infrastructure bill that became law last month has billions of dollars in it for roads, bridges, airports and transit systems in the Ohio Valley.

The law also addresses some of the region’s other pressing needs.

The $1 trillion infrastructure law has the potential to deliver big improvements to Appalachia. It will help reclaim abandoned mine sites, putting laid-off coal miners back to work.

It will help replace lead water pipes and clean up chemical contamination in water supplies.

It will also bring much-needed high-speed internet to rural communities, helping seniors on fixed incomes and children whose schools closed down during the coronavirus pandemic.

While some of the funding will produce immediate benefit for the region, other improvements may take years to complete. People familiar with the region’s needs see both short- and long-term impacts from the law.

Appalachian states have an abundance of mines that were abandoned before 1977, and they present hazards to public safety and the environment.

The infrastructure bill dedicates $11.3 billion to abandoned mine reclamation. Adam Wells, regional director for economic and community development for Appalachian Voices, said the bill offers two things the region desperately needs.

“I think the top line here is that it can immediately put people to work in coalfield communities, using skills and equipment that folks have at the ready,” he said, “and the benefit of environmental remediation is great to see as well.”

Wells said one challenge will be putting the people in place to administer the funding, which he said is the largest sum ever dedicated to mine reclamation.

“So they’re going to have to really rapidly staff up and get new systems in place to get that money back out the door at the pace that’s needed,” he said.

Coalfield communities have been promised either a rebound in coal, or an influx of new jobs building solar panels and other clean energy technology. So far, neither has materialized.

Wells said mine reclamation buys time for Appalachia to build a new, diversified and more resilient economy.

“Reclamation feels pretty grounded in what is possible, and what’s happening,” Wells said.

The infrastructure law includes $50 billion in Environmental Protection Agency funds to upgrade the country’s drinking water, wastewater and stormwater systems.

Critically, it enables the replacement of lead service pipes. The water crisis in Flint, Michigan, brought the issue to the forefront. More recently, the water system in Clarksburg, West Virginia, was revealed to have elevated levels of lead in drinking water.

Clarksburg is in the process of replacing its lead service lines.

The water funds will also help state and local governments address another growing problem: Contamination from PFAS, or forever chemicals.

Much of the funding will flow through state revolving funds. Todd Grinstead, executive director of the West Virginia Rural Water Association, said the assistance is welcome.

“You’re looking at quite an increase in funding for our state revolving funds, both the clean water and the drinking water side,” he said.

Grinstead said the large increase in state revolving funds can allow water systems to retire debt. That keeps them from having to charge their customers more to make needed investments.

“And when utilities do projects, they don’t like increasing bills for people. They like to do it cheap as they can,” he said. “But it’s also necessary to do the upgrades to be able to keep the quality of service up.”

With population loss in many coalfield communities, water systems aren’t adding many new customers. But they still have to repair and replace the infrastructure they have.

“It’s one thing to get money and install pipes and stuff. But time goes by pretty quick,” Grinstead said. “And next thing, you know, you’ve got stuff that needs replaced.”

The COVID pandemic laid bare one of the biggest disparities between population centers and rural communities: Access to high-speed internet.

With schools closed, many students had difficulty making the connection for remote learning.

Dale Lee, president of the West Virginia Education Association, said frustrated parents drove their kids to school parking lots to get WiFi.

Lee said some schools brought buses to remote communities to attempt to connect students to the internet. It couldn’t reach all of them, he said.

“In our rural state, like we have in West Virginia, this is a major problem,” he said. “And it’s a problem, not only for education and our students, but it’s for attracting businesses too.”

The infrastructure law provides $65 billion to build out broadband connections in rural areas.

Some liken it to the rural electrification efforts of the 1930s, which proved transformative for large portions of the country but took years to build.

“It is a very helpful thing. And the key now is to use the funds and get things going as quickly as possible,” Lee said. “But again, it’s not gonna happen overnight.”

Lee said educators from across the country gave input as lawmakers developed the broadband component of the infrastructure bill.

Lee said it has to be affordable for low-income families and seniors on fixed incomes. The law does include funding to reimburse households for a portion of their monthly internet costs.

“I mean, this is not an easy task,” he said. “It will take some time plus, you also have to provide some assistance to low income families to ensure that their kids can have this connectivity.”

Kentucky Court Orders Justice To Pay Penalty Over Mine Reclamation

A Kentucky court has found coal companies owned by West Virginia Gov. Jim Justice in default of a 2019 mine reclamation agreement.

A judge in Frankfort on Tuesday ordered Justice to pay a nearly $3 million penalty, plus interest, over mine reclamation work at three sites in eastern Kentucky that was not completed before deadline.

The judge revoked five of Justice’s permits, including some at mines he’d planned to reopen.

Justice also must pay attorneys fees to the state Energy and Environment Cabinet.

Attorneys for Justice had argued that the coronavirus pandemic made it impossible to meet the deadlines for completing the reclamation work.

The state countered that at least one of the deadlines passed before COVID-19 had widespread impacts and that one site had been left untouched for years.

Justice’s attorneys also tried to persuade the court to reduce the penalty based on work completed and to set aside the 8% per day interest rate it had agreed to pay.

“The Cabinet, nor the Court, has any obligation to continue to grant Defendants leniency,” Franklin Circuit Judge Thomas Wingate wrote in his 21-page order Tuesday.

Both Justice and his son, Jay, were named as defendants in the case.

A spokesman for Justice didn’t respond to a request for comment.

An NPR investigation in 2016 found that Justice’s coal companies owed $15 million in taxes and safety penalties across six states, including nearly $7 million in Kentucky.

Manchin Tells House Democrats to Vote on Bipartisan Infrastructure Bill

U.S. Sen. Joe Manchin has been negotiating for weeks with congressional Democrats on a big social spending bill. But they appear to be at a stalemate.

Manchin told reporters at the Capitol Monday that the House of Representatives should vote on a bipartisan infrastructure bill the Senate approved in August.

That’s not, however, what progressive House Democrats want. They want to vote on both bills at the same time. And even though they’ve come down on the original price tag, Manchin is still not on board.

“For the sake of the country, I urge the House to vote and pass the bipartisan infrastructure bill,” he said. “Holding this bill hostage is not going to work in getting my support for the reconciliation bill.”

Manchin said he wants more time to evaluate the social spending bill’s impact on the deficit and the economy. Those numbers would come from the nonpartisan Congressional Budget Office, but the process can take a while.

With the slimmest of margins in Congress, Democrats can neither afford to lose Manchin’s vote, nor a number of progressives in the House. Balancing their priorities has proved a difficult task.

The infrastructure bill has a big provision that would help West Virginia and Appalachia.

The more than 2,000-page bill includes $11.3 billion for the cleanup of abandoned mine lands and extends mine reclamation programs for 15 years.

Manchin, the chairman of the Senate Energy and Natural Resources Committee, included both provisions in the bill.

It also includes billions of dollars to plug orphaned oil and gas wells.

Mine reclamation alone could create hundreds of jobs in West Virginia and generate billions of dollars in economic activity, a recent analysis found.

Environmental Groups Tell Bankruptcy Court Blackjewel Continues To Skirt Obligations

A coalition of conservation and environmental groups is once again calling attention to pollution and unmet environmental obligations at mines controlled by now-bankrupt coal operator Blackjewel LLC. 

In a letter submitted to the bankruptcy court on Wednesday, Appalachian Citizens’ Law Center and eight other groups said the majority of the companies’ surface mine permits in West Virginia, Kentucky and Virginia have not been transferred to new operators as the company promised. 

The mines also continue to amass environmental violations, despite assurances by Blackjewel that mine reclamation and other environmental obligations would be taken care of by the new owners of the mines. 

“It is unfortunately very clear that Blackjewel is allowing the mining operations for which permits remain in its possession to deteriorate and accrue mounting numbers of permit violations,” the letter states. 

In Kentucky, the groups say the company has failed to transfer 149 of the company’s 213 permits. Fifty-nine transfers have been submitted. Only five permits have been transferred to new owners. 

In Virginia, 34 transfers have been completed, while eight are in process. Of the 29 permits where no action has been taken, the groups note four were slated to go to Kooper Glo Mining

In West Virginia, five of the 12 permits have been transferred. 

“We are therefore very concerned that Blackjewel will seek to abandon those permits during the course of this bankruptcy,” the groups write. 

According to their analysis of state and federal databases, Blackjewel mines continue to wrack up environmental violations, including complaints about water quality, sediment control and pollution exceeding discharge limits. 

In Kentucky, the groups found the number of on-the-ground violations jumped from 42 in the first quarter of 2019 to 119 in the first quarter of 2020. The bulk of the violations occurred at mines where there have been no moves to transfer the permit to a new owner. 

In West Virginia, the Department of Environmental Protection has issued 13 violation notices at Blackjewel mines still controlled by the company, the letter details. That includes serious issues reported at the Rush Creek mine complex near the Kanawha State Forest.

In a Tuesday filing, Kentucky environmental regulators echoed some concerns raised by the environmental groups. The state’s Energy and Environment Cabinet asked the court to force Blackjewel to bring its mining operations into compliance. The agency said the problem has escalated even after two court hearings addressed the issues earlier this year. It cited 606 outstanding violations of Kentucky’s mining laws and 13,125 violations of their state water quality permits, primarily the result of failing to submit discharge monitoring reports.

“Yet, instead of using the Estate’s limited resources to maintain their operations necessary to avoid causing harm to the affected land and water, the Debtors continue to spend millions of dollars on professional fees – an amount in excess of five million dollars ($5,000,000.00) for the third quarter calendar year 2019 alone,” the agency said. 

In an email, a spokesperson for FTI Consulting, which is representing Blackjewel, said the company had no comment at this time. 

 

W.Va. Officials Recommend $27 Million In Abandoned Coal Mine Cleanup Funding

West Virginia officials Thursday announced the names of the recipients they are recommending for millions of dollars in federal funding to help clean up abandoned coal mines.

The West Virginia Department of Environment Protection is recommending 12 projects in the Mountain State receive $27 million in Abandoned Mine Land Pilot program funding. 

“They are great projects for West Virginia that will spur economic development,” said Gov. Jim Justice, speaking at a virtual press conference Thursday. 

The AML Pilot program was created by Congress in 2015 to provide additional federal funding to the six Appalachian states with the most abandoned coal mines, including West Virginia.

The program provides funding to clean up abandoned mines and boost the economic and development goals of local communities. Project recipients ran the gamut, although all are required to be on or adjacent to mine sites that ceased operation prior to the passage of the Surface Mining Control and Reclamation Act of 1977.

About half of the projects recommended for funding this year will expand outdoor recreation opportunities and lodging options along the Hatfield-McCoy Trail system in southern West Virginia. Development along the Cheat River and Blackwater River also received funding. 

More than half of the funding will go to projects expanding access to clean water in communities, including some in Raleigh, Summers and Fayette counties. 

The group Reconnecting McDowell was recommended to receive $1 million to help finance the construction of the Renaissance Village in Welch, which will offer rental apartments to teachers and others in McDowell County. 

Federal regulators with the Office of Surface Mining Reclamation and Enforcement must still give final approval to recommended projects and funding amounts. 

Here is a list of the recommended recipients: 

Indian Creek ATV Resort Project           $3,378,000

Building the Indian Creek ATV Resort to serve as an anchor development for the newest Hatfield-McCoy Trail system in Boone County. Project includes construction of 20 cabins, 15 RV Sites, and will be the location of the new Coal River Trail System.

Oak Hill Sanitary Board – Minden Sanitary Sewer System Rehabilitation            $1,500,000

Upgrading existing sewer lines, pumping stations, and sanitary collection system.

Claudia L. Workman Wildlife Education Center $959,613

Building an educational and wildlife viewing center within the Forks of Coal State Natural Area, located on Corridor G, just south of Charleston.

Renaissance Village in McDowell County          $1,000,000

Aiding in the construction of a housing facility for teachers. The proposed facility will also have space available for commercial use.

Twin Hollow Campgrounds and Cabins Expansion Project         $2,699,422

Expanding the Twin Hollow Campgrounds and Cabins Resort in Mingo County to an even larger, more prominent destination that will bring in thousands of Hatfield-McCoy Trail Riders annually and facilitate a private sector investment of $3,970,230 over the next five years.

Reclaiming the Cheat River as an Economic Asset through Trail Investment and Nurturing Greenspace (RECREATING)                            $1,000,000

Improving trail and river access by building a destination trailhead at the Preston site.

Harper Eccles Sewer Extension Project              $7,647,398

Providing approximately three miles of public sewer to residents along Route 3 in Raleigh County.

Rhodell Water Service Upgrade Project             $2,125,000

Constructing approximately three miles of public water service to residents along Route 33 in Raleigh County.

White Oak Waterline Extension Project            $1,319,050

Providing approximately 19,750 linear feet of public water service to residents along the border of Raleigh and Summers counties.

The Blackwater River Loop Project: Hiking, Biking and Heritage Tourism        $818,000

Constructing a water treatment system to improve water quality of the north fork of the Blackwater River and make the site a visitor-friendly education project. This project will also create a scenic trail between the towns of Thomas and Davis and restore the Davis Coal and Coke Company engineering building for use.

Fleming – An Old Mining Town Transformation to Rustic Ravines                          $250,000

Building a lodge and wedding/conference venue, cabins, cottages, pods, RV and ATV parks, tennis amenities, basketball amenities, walking/hiking trails, ATV trails, an Alpine Coaster, a disc golf course, a miniature golf course, and an indoor driving range to increase tourism.

Brenton and Baileysville Waterline Extension Project$4,500,000

Providing water service to 254 customers, Baileysville Elementary and Middle School, along with a potential expansion of the Hatfield-McCoy Trail. 

 

W.Va. Regulators Sue Coal Operator ERP, Here’s Why It Matters

The West Virginia Department of Environmental Protection Thursday filed a lawsuit against coal operator ERP Environmental Fund, Inc. alleging the company has racked up hundreds of violations, laid off employees, and walked away from its mining operations, leaving environmental obligations unfulfilled. 

According to documents filed with the Kanawha Circuit Court on March 26, ERP holds more than 100 permits at numerous mine sites across West Virginia. With the exception of one permit, all were acquired in 2015 from Patriot Coal Corporation during the company’s second bankruptcy. 

DEP says it has issued 160 notices of violations and 118 failure to abate cessation orders to the struggling company. It argues ERP’s failure to comply with surface mining and water pollution laws poses “existing and ongoing threats to the public health and safety and the environment.”

High Stakes

Of greatest concern, the agency says, is the Tygart River Mine complex located in Marion County. The abandoned underground mine, often known as the Martinka mine, requires constant water pumping and treatment, which costs $900,000 annually. 

Without it, water will rise in the mine. If a blowout occurs, DEP says water would contaminate the Tygart River, a source of drinking water for thousands of West Virginians. 

“The situation at Martinka represents the proverbial canary in the coal mine and signals the serious issues involved in the Defendant’s cessation of operations,” the motion states. “Without immediate funding and effective management oversight of its environmental liabilities and operations, any one or all of the Defendant’s mine sites in West Virginia could soon become the next Martinka, placing the environment and the health and safety of many thousands of West Virginians at significant risk on a much broader scale.”

Clarke Enterprise 

ERP is associated with the Virginia Conservation Legacy Fund, a nonprofit operated by Virginia businessman Tom Clarke. Clarke, whose background is in healthcare, has faced scrutiny from conservation groups for his plans to reduce the environmental impacts of coal mining by planting trees on reclaimed mines. In addition to the Patriot mines, Clarke has purchased coal mines including from Cleveland Cliffs, Walter Energy and Alpha Natural Resources. In some cases his attempts were rebuffed.

According to the West Virginia Secretary of State, ERP’s president is former Patriot mining engineer Matt Cook. Clarke is listed as the company’s treasurer. 

A representative for Clarke did not respond to a request for comment. 

 

Erin Savage, central Appalachian senior program manager, with Appalachian Voices, said she was not surprised to see state regulators take this step.

 

“Tom Clarke had put together a scheme that we’ve seen other companies do as well, that they take on a lot of struggling mines out of bankruptcies and they have some plan that seems not fully thought out that will somehow allow them to succeed when the previous company did not,” she said. “I’ve been skeptical of Tom Clarke’s ability to clean up these mines and fund reclamation for years now.”

Receivership Compromise 

During the years after the purchase, DEP officials say ERP received little funding and struggled to keep up with its required environmental obligations. It asked the agency for access to money set aside for reclamation work, which the agency did not grant. DEP did allow ERP access to $1 million earmarked for water treatment at former Patriot mine sites. 

By late 2019 or early 2020, the documents state, ERP was out of cash. Officials say the company has performed only limited essential activities since February, and as of March 19, laid off all employees and ceased operating. 

But the DEP also stated it doesn’t have the resources to revoke all of ERP’s permits and do the reclamation by itself. 

The agency says transferring more than 100 permits to the state’s Special Reclamation Fund “would overwhelm the fund both financially and administratively, with the result that the actual reclamation and remediation of the ERP mining sites could be delayed.”

ERP has $115 million in surety bonds, which would be forfeited if the agency revokes the company’s permits. DEP says instead of taking that “drastic” step it has been in communication with the surety bond issuer, Indemnity National Insurance Company. 

“To put the matter bluntly, neither DEP nor the surety is willing to permit the Defendant to continue its operations and attempt environmental compliance under its current organization and management structure,” the motion states. “Each is willing, on the other hand, to fund and facilitate the Defendant’s compliance with its environmental obligation under the supervision and control of a qualified and capable receiver.” 

Savage, with Appalachian Voices, said this situation highlights the systemic challenges with how regulators allow coal operators to bond their mines.

“Having pool bonds and bond amounts that are potentially not sufficient to cover actual reclamation costs, having a single surety company cover so many permits — these are all red flags that could have been dealt with years ago, but as this point it’s hard to change the bonding structure,” she said.

The agency is seeking a temporary restraining order and temporary injunction compelling ERP to do its environmental remediation. DEP is also asking for the appointment of a special receiver to take control of ERP’s mines and assets. 

The receiver, Doss Special Receiver, LLC, would take control of ERP’s mines and carry out its reclamation requirements. In a press release issued Friday, the agency said Imdenmity has agreed to provide $1 million in funding to Doss to fund its operations for an initial period of 90 days.

 

 

 

Motion for TRO, Et Al (PDF)
Motion for TRO, Et Al (Text)

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