Bonding: Are the chickens finally coming home to roost?

By Cindy Rank

West Virginia received approval for primacy for the Surface Mining Regulatory program in 1982-3.  As a member of the local group Friends of the Little Kanawha (FOLK) and a relative newbie to the WV Highlands Conservancy I recall being at the legislative hearing where the legislature debated the idea of assuming from the federal Office of Surface Mining the responsibility for regulating the mining industry.

People discussed the pros and cons of the action and even then there were concerns about the adequacy of the proposed system for setting bonds for mining operations so that the state wouldn’t be stuck with no money to reclaim sites if/when a company went bankrupt or just up and left an operation before completing the job.

It was just 5 years later when WV Highlands Conservancy began the long slog to hold both industry and the regulatory agency accountable for maintaining bonds that would meet the requirements established by the Surface Mine Act of 1977. 

In ’88 the Highlands Conservancy, Trout Unlimited, Wildlife Federation (National and State chapter) challenged the state program for deficiencies including bonding.

In the 90s Acid Mine Drainage especially in the north threatened water quality and stream health and the cost of treatment began to soar.  But permits kept being issued and the state and individual companies continued to be challenged for not fulfilling their duty to provide enough bond money to guarantee successful reclamation.

Then came Mountaintop Removal and things just got worse.

Early predictions of inadequate bonding mechanisms were validated over and over again as the cost of land and water reclamation soared with every new mine. 

We appealed to the federal Office of Surface Mining, to state and local appeal boards, and the courts. There were programmatic challenges to the state, and appeals to the federal Office of Surface Mining, Congressional hearings, and litigation against individual mines and mine operators, – and always public actions to educate and involve individuals and communities and sympathetic legislators.

While the obvious legacy of orange water, buried streams and decapitated mountains were glaring enough to make any reasonable person sit up take notice, the insidious unseen but devastating impact of other pollution like selenium and the toxic brew of dissolved solids quietly degraded even further valuable headwater streams.

As many times that claims by the Conservancy and others about the inadequacy of the bonding program have been verified and remedies ordered by the courts and required by law, the response has never strayed far from the minimum needed to quell the current uprising, and neutralize the opposition —– a penny here, a penny more there. One tweak after another, one diversion after another.

And always nothing left to do but to live to fight another day and another and another. 

One of those fights led to WV Highlands Conservancy, Ohio Valley Environmental Coalition, and Sierra Club chasing after Patriot Coal during its 2015 bankruptcy proceedings and obtaining a Federal Court Order for new owner Virginia Conservation Legacy Fund VCLF and associated mining company ERP Environmental Inc. to accept responsibility for the obligations we had won from Patriot during years of litigation.

Compliance with the court orders would lead not only to ERP properly treating polluting discharges from sites previously owned by Patriot, but also directed a goodly sum of money to Appalachian Headwaters to support its efforts to restore productive native hardwood forests and improve water quality on former surface mine sites in our region.

As for West Virginia Department of Environmental Protection, it too reached agreement with Patriot successor VCLF during those bankruptcy proceedings.  As VCLF/ERP assumed ownership and responsibility for some 100+ Patriot mines, WVDEP was given the assurance that ERP was able to guarantee money enough to cover the cost of reclamation should the company fail.

It comes as no surprise to many of us that ERP has had great difficulty living up to any of its agreements but its mine closures and desertion of its workers in the spring of 2020 was the last straw.

Tired of ERPs non-compliance (e.g. West Virginia Department of Environmental Protection had issued the company some 118 cessation orders and 46 show cause orders) but not wanting to revoke ERP’s permits, an action that would surely break the Surety Company and add insurmountable liabilities to the Special Reclamation Fund, WVDEP sued ERP in state court, insisting that the company be put in receivership with a person chosen by WVDEP to oversee the financial dealings of the company and barring any other creditors from access to ERP funds – including those of us with court ordered agreements that transferred from Patriot to ERP.

Despite arguments from our lawyers objecting to the action, the State Court granted West Virginia Department of Environmental Protection the requested Temporary Restraining Order and Preliminary Injunction. There is no telling with delays due to the Coronavirus just when the State Court will proceed any further.

There are two problems of special interest to WVHC (Ohio Valley Environemntal Coalition and Sierra Club too). For one thing, it is settled law that state court cannot supersede a Federal Court Order like the one we have against ERP. However, as I understand it, the effort to bar our previously won Federal Court Orders may have been resolved, in which case ERP is still required to comply with the order and we plaintiffs retain the right to enforce that order through Federal Court.

Then there is the more expansive issue of the inadequate bond fund that is once again being given a pass. West Virginia Department of Environmental Protection is side stepping its responsibility and the bond program may yet again escape – or at least put off once again – the day of reckoning.  

Perhaps not in my lifetime, but some day, in some way, the state bond program is bound to implode from the weight of decades of imperfect permitting and insufficient bonding. 

Blinders off WVDEP.  After some 35+ years of warnings, advice, coaxing, and legal battles large and small, the chickens are flocking to your doors.


For another take on the ERP situation, see Peter Morgan’s blog printed elsewhere in this issue of the Highlands Voice. … Also check out Erin Savage’s Front Porch Blog: