HUNTINGTON — A federal judge ruled that a lawsuit alleging that the West Virginia Department of Environmental Protection isn’t properly maintaining the Special Reclamation Fund is allowed to continue.
U.S. District Judge Robert C. Chambers denied the WVDEP’s motion to dismiss, saying that there is sufficient connection between the procedural injury and the plaintiffs’ concrete interest, the order read.
“Here ... the plaintiffs have sufficiently alleged that DEP violated a procedural right that is designed to protect their interest,” the order read. “According to the complaint, defendant has refused to notify OSM of the financial failure of several large permittees and the impact that those failures have on the alternative bonding system.”
Pablo Willis with the Sierra Club, said in a news release that the case will now enter the discovery phase.
“We argued that WVDEP’s decision to place one of the state’s largest mine operators — ERP Environmental Fund — into a ‘special receivership’ was an admission of a substantial change in the state’s mining program because it proved that the state hadn’t set aside the necessary funds to pay to clean up abandoned mines,” Willis said in the release.
Willis noted that the WVDEP previously had said that the special receivership was necessary because the alternative was putting certain coal mines into forfeiture that would overwhelm the Special Reclamation Fund.
“Under the Surface Mining Control and Reclamation Act, state regulators have a mandatory duty to inform OSMRE when there are significant changes to the state program, including financial changes,” Willis said in the release.
Willis said after discovery, the case would likely go to trial.
The lawsuit was filed in July by the Sierra Club, West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition.
The organizations alleged that WVDEP failed to meet its obligations under federal law when reporting to the Office of Surface Mining Reclamation and Enforcement (OSMRE) about the fund being dramatically underfunded. They claim the fund can’t carry out its purpose of covering coal mine reclamation costs.
In March, WVDEP filed an emergency motion to force ERP Environmental Fund into receivership and an order was issued by Kanawha Circuit Court to appoint a special receiver temporarily. Other mine operators in the state are at risk of collapse, which would increase the burden on the fund, the complaint states.
The plaintiffs alleged WVDEP failed to perform its duties in notifying OSMRE of significant events that affect the fund.
The plaintiffs seek an order to declare WVDEP failed to perform its duties and order WVDEP to implement, administer, maintain, and enforce the approved state program concerning bonding of coal mines. The groups are represented by J. Michael Becher and Derek Teaney of Appalachian Mountain Advocates in Lewisburg.
U.S. District Court for the Southern District of West Virginia case number: 3:20-cv-00470