CHARLESTON, W.Va. -- West Virginia regulators will have to greatly improve their treatment of water pollution from dozens of old coal operations across the state, as part of a proposed settlement with environmental and citizen groups over the clean up of abandoned mines.
The state Department of Environmental Protection agreed to the deal after losing two federal court cases and an appeal in a legal effort to avoid setting pollution limits for the abandoned sites where it treats water discharges.
Over the next four years, DEP will now have to write water pollution permits, set discharge limits and install new treatment systems at more than 170 former mining sites in 20 counties.
The West Virginia Highlands Conservancy and other groups have spent years trying to push such reforms of the DEP's Special Reclamation Fund, which handles mine sites abandoned since the 1977 federal strip-mining law was passed.
"The state was running these sites 'off the books' to try to escape accountability for necessary water treatment," said Cindy Rank, mining chairwoman for the Conservancy. "Now that they are properly 'on the books,' WVDEP will calculate, for the first time, the full treatment costs at these sites. We have been asking for that calculation for over twenty years."
DEP Secretary Randy Huffman said the settlement could force his agency to re-examine the funding stream for the special reclamation program, which comes in large part from a tax on coal production.
Under the settlement, DEP must come up with an inventory of sites and estimated costs for additional treatment systems by July 2012.
"It's going to be significant," Huffman said. "To say that it can be done on the cheap or that it's not going to affect the solvency of the special reclamation fund would not be accurate."
Lawyers for the citizen groups had been prepared to file new lawsuits against the DEP, following up on previous litigation in federal courts in both northern and southern West Virginia. Instead, they filed copies of those suits on Tuesday along with copies of proposed settlements, which need court approval to be finalized.
"We're beyond the arguments now of whether it's appropriate or not. That discussion is over," Huffman said. "And now we're moving forward to find a mechanism to permit all of these sites."
Previous cases, brought by Public Justice and the Appalachian Center for the Economy and the Environment, focused on long-standing problems with West Virginia's Special Reclamation Fund, a program meant to cleanup recently abandoned mine sites. Mines abandoned before 1977 are covered by the separate Abandoned Mine Lands program, and funded by a federal coal production tax.
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.
Over the last two years, U.S. District Judge Irene M. Keeley in the northern district and U.S. District Judge John T. Copenhaver in the southern district have ruled that DEP must write pollution permits and set discharge limits for those sites. DEP's outside lawyers, from the firm Bailey and Glasser, lost an appeal to the 4th Circuit trying to overturn those decisions.
"By not obtaining permits or complying with required standards, DEP significantly underestimated the costs of treating acid mine drainage at these sites," said Jim Hecker, environmental enforcement director at Public Justice.
Earlier this year, the Legislature declined to adopt a recommendation from a DEP special reclamation advisory panel that the state nearly double the current 14.4 cents-per-ton coal-production tax that funds that reclamation program. Panel member Bill Raney, president of the West Virginia Coal Association, opposed the recommendation. Huffman later advised lawmakers not to adopt the panel's proposal.
In March, citizen groups sought to reopen a separate federal court lawsuit that targets the U.S. Office of Surface Mining Reclamation and Enforcement for its approval of DEP's under-funded special reclamation program. A status conference on that case is scheduled for Friday before Copenhaver.
"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, director of the Appalachian Center. "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."
Reach Ken Ward Jr. at firstname.lastname@example.org or 304-348-1702.