Conservationist groups are poised to sue West Virginia environmental regulators over water pollution concerns stemming from a problem that has dogged state regulators and lawmakers more and more in recent weeks: abandoned mine land.
The Sierra Club, the West Virginia Highlands Conservancy, and the West Virginia Rivers Coalition sent a notice of intent to sue to the West Virginia Department of Environmental Protection Tuesday for violations of the federal Clean Water Act at a coal mine bond forfeiture site in Clay and Nicholas counties.
Pollutant discharges on the site, whose water pollution permit is held by the state Department of Environmental Protection’s Office of Special Reclamation have far exceeded their monthly average limits in recent years.
Discharges have regularly exceeded limits by more than 1000% for iron, aluminum, pH and settleable solids at seven discharge points since 2018 in the Gauley River watershed, according to Environmental Protection Agency data.
The environmental groups identified 780 violations of permit limits for pH, iron and aluminum since October 2016 at the site, which had belonged to mine operator Greendale Coals, Inc. before its permit was revoked in the 1980s.
The groups want the Department of Environmental Protection to make the site’s pollutant discharges compliant with the Clean Water Act.
“It definitely caught our attention when we saw how long these exceedances have been happening and how extreme,” West Virginia Rivers Coalition executive director Angie Rosser said. “This isn’t, like, on the fence. This is over the fence in terms of, the state’s got major problems at this site that seem to warrant major corrections.”
Citing the site’s history of noncompliance, the environmental groups conclude in their notice of intent to sue that the Department of Environmental Protection either never built a treatment system they say that a permit issued by the DEP in 2014 required or failed to operate it properly.
The DEP agreed in a 2012 consent decree to prepare an inventory, priority ranking and treatment cost report for previously unpermitted bond forfeiture sites by the end of 2015.
The former Greendale site was one of the sites over which the same three environmental groups sued the DEP over the previous year, resulting in the consent decree.
The environmental groups’ threat of a lawsuit comes three weeks after the release of a state legislative audit report that found that West Virginia lawmakers and environmental regulators risk letting the state’s mining reclamation program slip into insolvency through gaping holes in statutory and permitting oversight.
The audit report presented to a joint panel of state senators and delegates Monday by the Post Audit Division calls on the state Legislature to commission a study to evaluate the state’s coal mining reclamation program.
The report finds that the state Department of Environmental Protection has failed to comply with state and federal law in its reclamation program oversight, resulting in missed opportunities to financially shore up a program that will keep requiring hundreds of millions of dollars to reclaim permit sites per federal regulations.
“I hope this action starts to reveal what’s going on at this site and what’s going on statewide with the program, especially in light of the legislative audit and the recommendations in there,” Rosser said. “This is a real on-the-ground example of what happens if there is not sufficient funding and attention given to these special reclamation sites, and it’s been our fear for some time that we’d be in this place of seeing these types of exceedances and the state not being able to meet their own permit.”
The West Virginia Legislature adopted a resolution during last week’s interim legislative session urging the federal government to allocate $8 billion to West Virginia to reclaim forfeited mine sites. The Legislature has yet to follow up on the Post Audit Division recommendation to commission a study to evaluate the state’s mining reclamation program.
Along with the Ohio Valley Environmental Coalition, the Sierra Club and the West Virginia Highlands Conservancy in May sued federal Office of Surface Mining Reclamation and Enforcement Deputy Director Glenda Owens, arguing that the office has failed to require more stringent requirements for the state’s federally approved surface mining program that would ensure coal companies fully fund reclamation bonds.
The office works with states to oversee mine cleanup.
A spokesman for the West Virginia Department of Environmental Protection could not be reached for comment Wednesday.
The notice of intent to sue sent Tuesday gives the Department of Environmental Protection 60 days to respond. Rosser hopes to hear from the department soon.
“I hope this opens up the dialogue further about how we can all work together to solve these problems, whether it be a combination of legislation or policy reform,” Rosser said. “However that special reclamation fund is assessed, I hope it opens the door to looking at some of the bigger systemic issues that we’re concerned about.”