The Sierra Club’s “Beyond Coal” campaign has generated another suit against West Virginia.
The Surface Mine Control and Reclamation Act (SMCRA) requires coal operators to reclaim mine sites after mining. To insure that reclamation occurs, operators must post reclamation bonds. West Virginia and many other states have an alternative bonding system that requires operators to both post a site-specific bond and pay a tax that funds a larger bond pool to insure reclamation at sites where the site specific bond is insufficient.
If a coal operator is unable to reclaim a site, the West Virginia DEP steps in and uses bond funds to achieve reclamation. In recent years, the Sierra Club and similar groups have brought a series of suits challenging West Virginia’s implementation of the bonding program. These suits have claimed, with varying levels of success, that: the bond pool is not large enough; that bond funds must be used to treat long term water liabilities; and that the West Virginia DEP must hold NPDES permits when it conducts water treatment at bond forfeiture sites.
On April 20, 2016, the Sierra Club expanded their efforts with the filing of two new lawsuits in federal court. The lawsuits allege that West Virginia DEP is failing to comply with effluent limits in NPDES permits the agency holds at seven former mine sites in Barbour, Preston and Nicholas counties. A link to the lawsuits can be found here for the Northern District of West Virginia suit and here for the Southern District of West Virginia suit.
This article was authored by M. Shane Harvey, Jackson Kelly PLLC.