Cleaning up polluted waters

Attorneys for the Appalachian Mountain Advocates, working with Jim Hecker of Public Justice on behalf of?West Virginia Highlands Conservancy, the West Virginia Rivers Coalition and the Sierra Club, have reached an important settlement with West Virginia’s Department of Environmental Protection that will clean up the water pollution from nearly 200 abandoned mine sites.

Since passage of the 1977 Surface Mining Control and Reclamation Act, coal companies have been required to post reclamation bonds before they begin work on a mine. If they go out of business or abandon the mine, that bond is supposed to cover the cost of reclaiming the mine, including treating any pollution, such as acid mine drainage, that resulted. Responsibility for carrying out that reclamation falls to the DEP.

Because West Virginia’s bonding requirements do not cover the full costs, a special mine reclamation fund was set up, paid for by a 14.4 cent-per-ton tax on coal production.

As a result of bonding cases we brought in 2001, that tax was increased by 11 cents a ton beginning in 2002.?But even with that increase, which required the coal industry to pay more than $100 million in additional taxes over the next decade, the fund doesn’t have enough money. As a result, the DEP has not fulfilled its responsibility.

Although required to do so by the Clean Water Act, DEP did not issue itself permits setting limits on pollution from the sites it was responsible for – except in one case. And DEP’s treatment systems and cost estimates were not designed to meet the standards that DEP itself has set to protect water quality.

This matters not just to the citizens of West Virginia unfortunate enough to live downstream from those sites. Eventually, the ongoing pollution problems will have to be dealt with and unless DEP determines how much that is going to cost and starts assessing a reclamation tax sufficient to cover those costs, West Virginia taxpayers will eventually be stuck with the tab – which could run into the hundreds of millions of dollars.

This settlement stems from successful suits brought in 2007 against DEP over 21 of the worst sites. In both cases, federal judges ruled against DEP. The 4th Circuit upheld the first ruling?and DEP did not appeal the second.

Those defeats undoubtedly encouraged DEP to settle when lawsuits covering the remaining bond-foreiture sites were threatened.

The settlement, if approved, will be a huge step forward. DEP will have to inventory the sites it is responsible for that have water pollution issues, ranking them according to which have the worst problems. It will have to begin the process of issuing permits with discharge limits for those sites that will not violate state water quality standards and, perhaps most importantly, it will have to submit an estimate of the costs for treating those sites to the Special Reclamation Fund Advisory Council. The council can use that information to determine what the reclamation tax actually needs to be in order to cover these costs.

The sooner the tax is increased, the better.

“Coal mining will decline as resources are depleted, but the money needed to treat polluted water will remain constant or even increase,” said Joe Lovett, executive director of Appalachian Mountain Advocates. “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.”

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