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Environmental Groups Sue DEP Over W.Va. Coal Reclamation Fund

Five barges full of coal being transported along the Kanawha River in Marmet, W.Va.
Eric Douglas/ WVPB

A new lawsuit brought by environmental groups raises the alarm over the solvency of a fund that can be used to clean up coal mining operations when mining companies walk away.

Three groups — the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club — filed the citizen’s suit Thursday against the West Virginia Department of Environmental Protection and its secretary, Austin Caperton.

The complaint alleges the agency violated federal mining laws by failing to alert federal mine regulators that recent actions jeopardize the state’s Special Reclamation Fund.

Those actions include the bankruptcies of Murray Energy and Blackjewel Mining L.L.C., the possible bankruptcy of Southeastern Land, LLC and an emergency motion filed by the DEP in March seeking to place more than 100 permits controlled by coal operator ERP Environmental Fund into a special receivership so they wouldn’t be forfeited

“The WVDEP has failed to properly manage its reclamation program, which has led to a dire situation, one in which there is not enough money to clean up mines abandoned by their insolvent operators,” said Karan Ireland, senior campaign representative with the West Virginia Sierra Club.

The solvency of the state’s Special Reclamation Fund and bonding program have long drawn criticism over whether they would be sufficient to cover all of the reclamation work needed across the state.

The lawsuit draws largely from the court actions the DEP took in March against ERP. In an emergency motion the agency wrote that transferring the company’s more than 100 permits to the state’s Special Reclamation Fund “would overwhelm the fund both financially and administratively, with the result that the actual reclamation and remediation of the ERP mining sites could be delayed.”

According to a Jan. 9, 2020 report to the West Virginia Legislature, as of Sept. 30, 2019, the Special Reclamation Fund had just over $58 million in cash and investments. It is funded by a 12.9 cent tax per ton of coal mined in West Virginia.

A spokesperson for the DEP said the agency “cannot discuss pending litigation and cannot comment at this time.”

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