If there ever was a robust program on paper that was more like swiss cheese in practice, look no further than the West Virginia coal mine bonding program.
Untold numbers of articles in the Highlands Voice over the years have explained West Virginia Highlands Conservancy’s (WVHC) role in multiple attempts to plead with, cajole, and finally sue the state regulatory agency – now WV Department of Environmental Protection (WVDEP) – to responsibly oversee coal mining in West Virginia.
Whether it was John McFerrin or John Purbaugh, Don Gasper or Don Garvin, Julian Martin or James Tawney, or a plethora of other WVHC members and allies in sister organizations and friendly public interest lawyers and experts who did the commenting and pleading, the regulatory agencies and state legislature often had nothing but a deaf ear to offer. Court orders are headed, but even then, implementing legally dictated actions seem to slip and slide this way and that.
Among the many issues we’ve often challenged administratively and legally is the program established to guarantee reclamation of mine sites by having companies post a bond. The bonds are supposed to be backed up by the West Virginia’s Special Reclamation Fund (SRF) which pays the cost of reclamation when bonds are inadequate. The difficulty is that the SRF is also underfunded, leaving a real question of how mines will be reclaimed.
It was apparent from the get-go in the early 1980s that the alternative coal mine bonding program proposed by West Virginia and approved by the Office of Surface Mining Reclamation and Enforcement (OSMRE) was potentially fraught with holes. The ensuing 40 years have been a roller coaster ride of citizen legal challenges to the program and equivocal responses by the state resulting in short-sighted audits, numerous insufficient efforts to increase bond amounts or tweak the bond pool, and an overall political lack of will to do anything substantial enough to bring the program into full compliance with federal law – leaving the citizens of the state to shoulder the burden of water pollution and unproductive previously mined land.
Our most recent challenge to the inadequacy of the bond fund was spurred by WVDEP’s own admission that the bond program was in jeopardy.
Last year, WVDEP admitted to the crisis, and took the unprecedented step of asking a state court to place a failing mine operator into receivership to help manage what is left of the company’s assets. Among the justifications given to the court by WVDEP was the potential failure of one of the state’s primary surety bond providers and the need to avoid exhausting the state’s emergency “Special Reclamation Fund”.
We reminded WVDEP and Office of Surface Mining Reclamation and Enforcement that federal law requires any such significant event impacting the regulatory program be reported to the federal OSMRE for a ruling about any possible amendment needed to fulfill the requirements of federal law. In December 2020 WVDEP sent a letter to OSMRE but failed to take any action to shore up the fund. The Office of Surface Mining didn’t do anything either beyond saying it would review the situation with WVDEP. Forty years of fecklessness leading to a crisis seemed to warrant something stronger than talking about it. In May 2021 WV Highlands Conservancy joined Sierra Club and the Ohio Valley Environmental Coalition in legal action to force the agencies to do more.
On August 24th 2021, in response to the lawsuit, OSMRE announced its formal determination that yes, West Virginia is violating the federal Surface Mining Act and must amend its regulatory program to ensure the state is accurately assessing reclamation costs and ensuring that adequate funds are available to clean up newly abandoned mines.
60 days and counting for the state response.
In addition to citing the lawsuit and its joint review of the state program since WVDEP’s December 2020 letter, OSMRE stated that deficiencies noted in its 2002 approval of the state’s financial assurance program haven’t been fully addressed. As if it needed more proof, OSMRE also referred to a June 7, 2021 WV Legislative Audit that takes to task WVDEP’s Division of Mining and Reclamation’s Surface Coal Mining and Reclamation Bonding Program by highlighting some 11 significant issues with the bond program.
I’ll not recite all those issues here, but suffice it to say that this witness to most if not all of the developments mentioned was sufficiently gob smacked to see everything laid out in great detail by an arm of a legislature that for years has been frozen in its tracks when changes to the fund have been recommended.
For the policy wonks among you, or for general nighttime sleep inducing reading, or for winter time reading sure to warm the cockles of your heart (i.e., make your blood boil), I recommended the legislative audit and WVDEP’s response at: