This year, nearly $30 million in federal funding will go toward projects that revitalize West Virginia’s coalfield communities and repurpose abandoned mine lands across the state.
In an effort to repurpose abandoned mine lands, state officials have granted millions of dollars in federal funding to community development projects on former West Virginia coalfields.
The funding was secured in the latest round of the Abandoned Mine Land Economic Revitalization (AMLER) Program. Since 2016, the program has provided federal dollars to community and economic development projects that rehabilitate coalfields, as well as the towns surrounding them.
West Virginia has hundreds of abandoned coal mining sites, with an estimated 173,000 acres of land across the state abandoned before 1977 alone.
For 2024, West Virginia was granted just under $30 million through the U.S. Department of the Interior’s Office of Surface Mining Reclamation and Enforcement (OSMRE), which oversees the program.
This year’s funding marks the most West Virginia has received since 2016, the first year of the program.
With OSMRE’s final approval still pending, West Virginia officials said that this year’s funding would be divided between 10 different economic development initiatives across the state.
Projects selected for funding by state officials this year include a cattle processing facility in Brooke County, a sports park in Marion County and a heritage center in Ohio County.
Announced Thursday, the following projects were tapped for AMLER funding this year by the West Virginia Department of Environmental Protection, the West Virginia Department of Commerce, the West Virginia Department of Transportation and the Governor’s Office:
Chief Logan Resort and Recreation Center, Logan County: $6,800,000
West Virginia Farm Foods, Brooke County: $4,000,000
City of Thomas Water Improvement Project, Tucker County: $3,000,000
Cleanwater RU2 Process Project, Kanawha County: $2,950,000
Ashland Resort Tourism Park, McDowell County: $2,993,500
Liberty Station Lodge & Tavern, Mercer County: $2,421,968
Opal Smith Highwall and Roanoke Center Expansion, Lewis County: $2,406,739
Gravity Adventure Park, Kanawha County: $2,163,954
Congress put the Office Of Surface Mining, Reclamation and Enforcement in charge of $11.3 billion toward mine reclamation for use over the next 15 years, but according to environmental groups, the money isn’t getting to communities fast enough.
Congress included billions of dollars for mine reclamation in last year’s Infrastructure Investment and Jobs Act. But the federal agency that oversees those funds still doesn’t have a director after 17 months.
Congress put the Office Of Surface Mining, Reclamation and Enforcement in charge of $11.3 billion toward mine reclamation for use over the next 15 years, but according to environmental groups, the money isn’t getting to communities fast enough.
And not just for mine cleanup, but also for economic development projects in coal communities.
The groups also say the agency has not adequately enforced federal law on companies currently in business. In many cases, they are years behind in their cleanup obligations.
Erin Savage, senior program director for Appalachian Voices, says the agency needs a Senate-confirmed director to manage the new funding and enforce federal law.
“So without a director, OSMRE staff aren’t able to make the necessary adjustments to the program to allow it to work more effectively and efficiently,” she said.
A director would need a confirmation hearing in the Senate Energy and Natural Resources Committee. West Virginia’s Joe Manchin chairs the panel.
Environmental and community advocates in Appalachian coal communities are concerned about a new federal rule, finalized this week, that is changing the process that allows citizens to file complaints about polluting coal mining operations.
The Department of the Interior’s Office of Surface Mining Reclamation and Enforcement said in a Tuesday press release that the changes to the 10-Day Notice policy would “streamline” the complaint process.
Under federal law and agency regulations, anyone can notify the agency about alleged mining violations. Under the original rule, the agency would share the complaint with state regulators. That kicked off a 10-day clock for the state to take action, either by forcing the company to fix the problem, or showing why action wasn’t necessary.
Under the new rule, the agency can informally contact state regulators before sending a 10-Day Notice. Officials said it would allow for more flexibility between state and federal investigations. Final language for the rule has not been made public.
“This rule restores [the Surface Mining Control and Reclamation Act] mandate of cooperative federalism, reduces duplicative red tape, and ensures we work alongside our state partners who are the primary enforcement authorities under the law,” Deputy Secretary of the Interior Kate MacGregor said in the release.
Environmental groups fear the changes weaken their ability to protect communities and the environment. In a statement addressing the changes proposed earlier this year, the advocacy group Center for Biological Diversity said the new rule changes the entire reporting process, making it more difficult for residents and making responses from regulators “discretionary instead of mandatory.”
Vivian Stockman, executive director of the Ohio Valley Environmental Coalition, said the 10-Day Notice process has been an important tool used in Appalachia.
The process was one tool used by activists to force the relocation of Marsh Fork Elementary School in Raleigh County away from the shadow of a coal processing plant, coal slurry impoundment and mountaintop removal operation. The groups argued the operations threatened the health and safety of the students.
“This rule change is all about trying to thwart people from seeking help when their communities are harmed by coal companies’ actions,” Stockman said. “What is indisputable is that this administration will side with the coal barons, communities be damned.”
A federal court on Friday approved a deal that requires two federal agencies to review the environmental impacts of coal mining on endangered species, including West Virginia’s Guyandotte River crayfish.
Under the agreement, the Office of Surface Mining — the agency that regulates mountaintop coal mining — and the U.S. Fish and Wildlife Service — the agency that protects endangered species — will review a 1996 document or “biological opinion,” that lays out how coal mining is likely to affect endangered species or their habitat.
The deal was the result of a lawsuit filed last year by environmental groups, the Center for Biological Diversity, Appalachian Mountain Advocates, Ohio Valley Environmental Coalition, the Sierra Club and West Virginia Highlands Conservancy.
They argued the endangered Guyandotte River crayfish in West Virginia was at risk because the federal government was using outdated guidelines that failed to ensure that mining does not jeopardize endangered species.
Studies have shown that air and water pollution from coal mining can harm birds, fish, crayfish, insects and freshwater mussels, as well as nearby communities.
The Fish and Wildlife Service has until Oct. 16 to review the biological opinion and submit it to the Office of Surface Mining.
In a press release announcing the decision, conservation groups called the court deal a win.
“For West Virginia to stay ‘wild and wonderful,’ as residents like to describe their state, we have to protect our animals from extinction, so it’s important that federal agencies actually do their job and take steps to make that happen,” said Jim Kotcon, conservation chair of the West Virginia chapter of the Sierra Club.
The review could affect a number of endangered species impacted by coal mining nationwide, although under the court-approved deal the agencies must also adopt specific new guidance to prevent harm to the Guyandotte River crayfish.
In January, the Fish and Wildlife service proposed designating 445 miles of streams in West Virginia, Kentucky and Virginia as “critical habitat” for the Guyandotte River crayfish and Big Sandy crayfish.
In apparent anticipation of a federal lawsuit seeking recovery of overdue penalties, coal companies owned by the family of West Virginia Gov. Jim Justice have filed a lawsuit of their own against federal surface mining regulators.
The suit, first reported by WV MetroNews, is an apparent preemptive strike against the federal government, which is preparing to sue the companies over over unpaid fines associated with more than 100 environmental and reclamation violations at mines in West Virginia, Virginia, Tennessee and Kentucky.
According to lawsuit, negotiations between officials from the Department of Interior’s Office of Surface Mining, Enforcement and Reclamation (OSMRE) and the Justice companies, including the governor’s son, Jay Justice, to settle unpaid fines abruptly fell apart earlier this month.
The Justice companies contend the civil lawsuit by MSHA and the Justce Department was surprising, and argue in the newly-filed litigation that it may have pushed officials at the OSMRE to back away from a proposed $250,000 settlement agreement.
However, in a May 15, 2019 letter to lawyers representing the Justice companies that was included in the lawsuit, John Austin, the field solicitor in the Department of Interior’s Knoxville office, wrote that the believed settlement, and any settlement over $100,000, could not be approved without approval from the Justice Department.
“Therefore, notwithstanding your clients’ assertion about a deal they believe they made with OSMRE, there is not nor has there been an authorized agreement with the United States to settle the monetary debts of your clients for $250,000.00, or for any other amount,” Austin wrote.
The lawsuit describes a month-long effort by representatives from the Justice companies to settle fines from more than 100 violations at Justice mines dating back to 2017 as well as fines assessed against Jay Justice personally. The dollar amounts of the fines associated with the violations were redacted in the lawsuit.
Problem Properties
Credit Sydney Boles / Ohio Valley ReSource
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Ohio Valley ReSource
The October flood damaged the road near the Thacker house.
Unreclaimed mines can present hazards to public safety and property for those living nearby.
In October 2018, floodwaters washed away the road to Elvis and Laura Thacker’s home, located about a quarter-mile downhill from the mine, trapping them inside. A similar June 2016 flood caused mold and about $148,000 in damages.
Despite a history of reclamation violations and complaints by residents, the mine, owned by Justice-controlled Kentucky Fuel Corp., remains the subject of a years-long dispute between the Justice family and regulatory agencies.
Last fall, Kentucky officials said the the Justice companies owed $2.9 million in reclamation penalties. Representatives for Kentucky Fuel Corp. dispute the amount and say they have made significant progress addressing violations at Bevins Branch.
Still, last October, OSMRE issued an immediate harm cessation order for the site, and Bevins Branch appears to be one of the mines with unpaid fines included in the new lawsuit.
Timeline
According to the suit, on April 8, 2019, Jay Justice and Justice Mining Entities COO Tom Lusk met with Michael Castle, the field office director of the OSMRE Knoxville and Lexington field offices and OSMRE official Mark Snyder in Knoxville.
During the meeting, according to the lawsuit, Jay Justice proposed that his companies would prioritize completing mine reclamation work “in lieu of the penalty assessments and that the penalty assessments be reduced by the cost of the reclamation work.”
According to the document, Castle, with OSMRE, said that because the delinquent mines were not currently operational and “the companies are not obtaining any financial benefit through non-compliance” he believed he had the authority to create a settlement agreement.
The group agreed that if the total amount of penalties owed was not reduced below $250,000 after this reclamation work, the Justice companies would pay that amount over a year to satisfy the remaining debt.
Later that day, the parties returned for a second meeting, this time with their lawyers present, including Austin, DOI’s field solicitor based in Knoxville. Austin asked the Justice companies to provide collateral that they could satisfy the agreement, to which the Justice companies agreed.
Later, at another meeting, the question of whether the Justice companies would need to provide collateral was left unresolved, according to the lawsuit.
Justice company representatives said they left the April meetings believing an agreement was in place. They said a letter to Austin sent in late April, invited him to ask for any additional financial information from the Justice companies, went unanswered.
During that time, the Justice companies said they began doing reclamation work.
“In the week of May 6, 2019, the government’s attitude toward the Justice Mining Entities noticeably soured,” the lawsuit states. That week, MSHA and the Justice Department filed a lawsuit seeking $4.7 million in unpaid mine health and safety fines and fees from the Justices.
Days later, after agreeing to “suddenly renewed” requests for collateral and more financial information from the Justice companies, the lawsuit states they received the May 15 letter from Austin stating that the settlement agreement had not been made. Instead, he wrote that a letter authorizing the DOJ to file suit against the Justice companies on behalf of the Interior Department had been issued.
“We have suggested on more than one occasion that a showing of good faith will benefit your clients if they intend to pursue settlement,” Austin wrote, adding that includes the Justice companies “continuing to abate the environmental violations that exist in Tennessee and by making good on a settlement agreement negotiated on their behalf in 2017.”
A request for comment to OSMRE was referred to the Justice Department, which did not immediately reply.
In a statement from Justice company Bluestone Coal Corp., Jay Justice said the companies are still seeking a settlement agreement with the federal government, but the “incident with MSHA” made an impression.
“We don’t want to have to go to court to get the government to do the right thing and live up to its end of the bargain, but we can’t sit back and let the government take advantage of our good faith efforts to resolve this matter,” he said.
Pattern of Behavior
The Justice companies have a documented history of racking up mine safety fines, failing to pay taxes, and inadequately completing reclamation work.
The companies have also repeatedly failed to pay suppliers. A review of court documents by the Ohio Valley ReSource last fall found at least five cases in which judges ruled that Justice family companies failed to pay suppliers for goods or services. When compelled by courts to pay, the companies either refused or failed to meet agreed upon payments.
These cases, dating back to 2013, include a failure to pay for a range of common coal industry needs, such as parts for mining equipment, coal barge services, insurance, and the royalties due to mineral property owners. The debts the Justice family companies owed in these cases ranged from just under $150,000 to a little more than $3 million.
In all five cases the courts authorized U.S. Marshals to seize assets from the Justice family companies’ bank accounts in order to recover the debts. However, in some cases officials discovered the bank accounts were empty or closed.
West Virginia conservation officials say several remediation projects at or adjacent to old mine sites have received approvals to start spending federal grants.
According to the Department of Environmental Protection, Congress authorized the money to accelerate cleanups at sites in historic coal regions with potential to boost local economies, projects that were subsequently approved by the federal Office of Surface Mining Reclamation and Enforcement.
They include $12 million for the Sullivan Industrial Park Project in Beckley, $4 million for the I-79 Technology Park Mine Reclamation and Economic Expansion Project in Fairmont, $3.6 million for the Aquaponics on AML Project in Kermit and $4.1 million for the Highland Mountain Waterline Extension Project and Crickmer Road Waterline Extension project in Fayette County.
