Court Rejects DEP on Mine Water Pollution
Emboldened by ruling, activists set sights on more abandoned land
Charleston Gazette
8 November 2010
By Ken Ward Jr.
CHARLESTON, W.Va. -- A federal appeals court on Monday affirmed a
decision that requires West Virginia regulators to improve the
treatment of acid mine drainage and other pollution at abandoned coal
mines that are being reclaimed by the state.
The 4th U.S. Circuit Court of Appeals upheld a January 2009 ruling that
the state Department of Environmental Protection must obtain water
pollution permits for mine sites being cleaned up by its Special
Reclamation Fund program.
The lower court ruling by U.S. District Judge Irene M. Keeley in
Northern West Virginia, and a similar decision by U.S. District Judge
John T. Copenhaver in Southern West Virginia, would force the DEP to
improve treatment so discharges from abandoned mine sites comply with
state water pollution standards.
"The state was running these sites 'off the books' to try to escape
accountability for necessary water treatment," said Jim Hecker,
environmental enforcement director at Public Justice and lead lawyer
for the West Virginia Highlands Conservancy, which brought the case.
DEP spokeswoman Kathy Cosco said agency officials are disappointed with
the ruling and are considering their options.
Eventually, the court ruling could force the DEP and state lawmakers to
increase coal taxes to fund millions of dollars of pollution reductions
at former coal-mining sites across West Virginia. It also could affect
how the DEP handles permit applications for future operations where
acid mine drainage is predicted to continue after mining is completed.
In rejecting the DEP's appeal of Keeley's earlier decision, a
three-judge panel of the 4th Circuit turned down arguments that
requiring permits and pollution compliance at these abandoned mines was
impractical, if not impossible.
"These arguments about the heavy burdens imposed by the permit program
are hardly novel," Judge J. Harvie Wilkinson wrote in the 17-page 4th
Circuit decision. "Any time Congress imposes a permit scheme, some
regulated entities will complain that the permits impose onerous costs
and will led to all manner of hazardous consequences. We are not in the
business of rewriting laws whenever parties allege it is difficult to
comply with them."
The 4th Circuit also rejected the DEP's argument that it did not have
to obtain permits because the original pollution was caused not by the
agency, but by coal companies that operated mines at the sites.
"The statute takes the water's point of view: Water is indifferent
about who initially polluted it so long as pollution continues to
occur," Wilkinson wrote.
The case focused on long-standing problems with West Virginia's Special
Reclamation Fund, a program meant to clean up coal mines that were
abandoned after the 1977 federal strip-mining law was created. Mines
abandoned before 1977 are covered by the separate Abandoned Mine Lands
program and funded by a federal tax on coal production.
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 has 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.
Today, the DEP operates treatment systems at dozens of abandoned mine
sites, but the agency does not reduce the pollution from those sites
enough to meet water quality limits, and does not obtain Clean Water
Act permits for the site discharges.
The case before Keeley concerned 18 abandoned sites in north-central
West Virginia, while the lawsuit before Copenhaver focused on three
abandoned mines in the state's southern coalfields.
Hecker said environmental groups would now try to force the DEP to
obtain permits for its discharges at 131 similar mine sites not
included in the original lawsuits.
"The district court ordered the state to obtain the required discharge
permits, and the 4th Circuit today affirmed that decision," Hecker
said. "The state will now have to comply with the water-quality
standards it is violating."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.