DEP Deal to Improve Water Treatment at Former Mines
Charleston Gazette
2 August 2011
By Ken Ward Jr.
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 kw...@wvgazette.com or 304-348-1702.