TLPJ Press Release header



Tuesday, November 14, 2000 



Jim Hecker, TLPJ, 202-797-8600

Joe Lovett, 304-342-0022

Pat McGinley, 304-292-9822

Citizens’ Group and TLPJ Sue Federal and State Regulators to Fix West Virginia’s Coal Mining Program

The West Virginia Highlands Conservancy and Trial Lawyers for Public Justice (TLPJ) today filed a citizen suit against the federal Office of Surface Mining (OSM) and the West Virginia Division of Environmental Protection (DEP) to force those agencies either to fix fundamental deficiencies in DEP’s surface mining regulatory program or have the federal government take over regulation of the state’s coal industry.

For more than nine years, DEP has known that its bond fund used for cleaning up the state’s abandoned mine sites has had a deficit that runs into the tens of millions of dollars. For more than nine years, OSM has directed DEP to eliminate the deficit and restructure the bonding system. DEP has never submitted such a plan, and OSM has never enforced its orders. In addition, DEP has ignored dozens of other OSM demands to promptly correct deficiencies in its program, including ineffective protection of water supplies, insufficient safeguards to reduce blasting impacts, and inadequate reclamation requirements. Therefore, the Conservancy and TLPJ have invoked their rights under federal law–the Surface Mining Reclamation and Conservation Act–to ask the U.S. District Court for the Southern District of West Virginia in Charleston to order those agencies to maintain and enforce federal mining requirements as Congress intended.

"It’s high time that DEP recognized and fixed these longstanding problems with its bonding system. The Conservancy has tried to focus DEP’s attention on this issue many times over the past 15 years. We believe that court intervention is now necessary to resolve this issue," said Cindy Rank, mining chair of the Conservancy.

DEP’s bonding system is inadequate to reclaim mine sites and abate water pollution caused by mining. Five years ago, OSM calculated that the bond fund had a $62 million deficit. That deficit has gotten worse since then, so OSM has stopped calculating the deficit. But its most recent annual report, for 1999, made an alternative calculation that the fund is so short of money that:

1. DEP is spending bond funds on only five of the 67 forfeiture sites that need treatment for pollution discharges.

2. To clean up only those five sites, the bond fund would have to devote all of the money it obtains over the next 20 years.

3. The fund has no additional money to clean up the remaining 62 existing sites, much less any of the new sites that will need clean up in the future.

The federal Surface Mining Act, and West Virginia’s federally-approved state program under that statute, require companies to post reclamation bonds in order to obtain mining permits. Those bonds are supposed to pay for reclamation if the companies go out of business or walk away from a mine without complying with their clean up responsibilities.

"Coal operators are reaping enormous profits from mining coal in West Virginia, but many are evading their obligations to clean up the environmental mess created by their activities," said Joe Lovett, co-counsel for the Conservancy. "Many unreclaimed mine areas in West Virginia suffer from soil erosion, stream sedimentation, acid mine drainage, harm to recreational stream uses and lowered property values."

"DEP sets the bond amounts far below the actual clean up costs," said Suzanne Weise, co-counsel for the Conservancy. "Furthermore, with larger and larger mountaintop removal mines, the cost and burden of reclamation is increasing. As a result, with every new permit that DEP approves, the bond fund is falling farther and farther behind. This is irresponsible. DEP has created a business climate in which a rational coal operator can conclude that it is cheaper to forfeit its bond than to pay for reclamation."

"We will ask the Court to prevent DEP from granting any more permits and adding any more red ink to the bond fund until DEP or OSM fix it," said co-counsel Jim Hecker, TLPJ’s Environmental Enforcement Attorney. "DEP should not issue any more new mining permits unless it analyzes the actual reclamation costs of each one and requires mine operators to post individual bonds sufficient to reclaim them. We will also ask the Court to require an audit so that the public is informed about what the actual, unfunded costs of reclamation. DEP and OSM have hidden this information from the public for years."


Trial Lawyers for Public Justice is the only public interest law firm dedicated to using trial lawyers’ skills and resources to advance the public good. Founded in 1982, TLPJ utilizes a network of more than 2,200 of the nation's outstanding trial lawyers to pursue precedent-setting and socially significant litigation. TLPJ has a wide-ranging litigation docket in the areas of toxic torts, environmental protection, consumer rights, worker safety, civil rights and liberties, and access to the courts. TLPJ is the principal project of The TLPJ Foundation, a not-for-profit foundation and membership organization. TLPJ’s State Coordinator in West Virginia is Harry Deitzler, phone 304-345-5667. The TLPJ web site can be found at