Three environmental groups have filed suit in federal court to force the state Department of Environmental Protection to maintain a fund designed to clean up and reclaim coal mines abandoned by insolvent operators.
The lawsuit is intended to head off “the anticipated collapse” of the Special Reclamation Fund and start the process of “state and federal agencies working together to make the necessary fixes to West Virginia’s program,” according to a news release from the plaintiffs.
The suit, which names DEP Secretary Austin Caperton as defendant, was filed Thursday in U.S. District Court in Charleston by the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and the state chapter of the Sierra Club.
Lawyers for the organizations maintain that the $61 million remaining in the Special Reclamation Fund, raised through a state tax on coal sales, is inadequate to meet existing needs, let alone cover the potential reclamation costs of other large operators now facing bankruptcy. Thursday’s lawsuit came about following the DEP’s filing for an emergency motion in Kanawha Circuit Court in March to force the coal company ERP Environmental Fund into receivership.
In 2015, ERP bought more than 100 mining permits from Patriot Mining. Since then, according to the DEP, the company racked up “hundreds of violations of surface mining and water pollution laws” plus scores of cessation and show-cause orders, before ceasing operations, laying off all employees and becoming insolvent. The company’s insolvency left “many mining sites unmanned, unsecured, unmaintained and in various stages of land and water disturbance and incomplete reclamation,” according to the DEP’s March filing.
ERP did hold reclamation bonds totaling $115 million, which its bond provider may not be able to fully pay out, according to the DEP.
But even if all of the $115 million was made available and all $61 million in the DEP’s Special Reclamation Fund was tapped, it would still fall short of covering the cost of reclaiming its mine lands, estimated at $230 million.
Hundreds of millions of additional dollars would be needed to treat polluted water at ERP’s mine sites, according to the suit.
“ERP is not the only major mining company in West Virginia that is currently insolvent or that faces an imminent threat of insolvency,” lawyers for the environmental groups wrote in their complaint, citing Murray Energy, Revelation Energy and Southeastern Land as examples.
Under the guidelines of the Surface Mine Control and Reclamation Act, the DEP is required to notify the director of the federal Office of Surface Mining of any “significant events” that could threaten the solvency of the Special Reclamation Fund, according to the complaint.
The suit seeks an order compelling Caperton to inform the OSM of such “significant events” as ERP’s insolvency and reclamation liabilities, and of other pending coal company insolvencies to ensure that an adequate level of reclamation funding is available.