Read the ruling here.
CHARLESTON, W.Va. -- A federal appeals court on Monday affirmed a decision that requires West Virginia regulators to improve the treatment of acid mine drainage and other pollution at abandoned coal mines that are being reclaimed by the state.
The 4th U.S. Circuit Court of Appeals upheld a January 2009 ruling that the state Department of Environmental Protection must obtain water pollution permits for mine sites being cleaned up by its Special Reclamation Fund program.
The lower court ruling by U.S. District Judge Irene M. Keeley in Northern West Virginia, and a similar decision by U.S. District Judge John T. Copenhaver in Southern West Virginia, would force the DEP to improve treatment so discharges from abandoned mine sites comply with state water pollution standards.
"The state was running these sites 'off the books' to try to escape accountability for necessary water treatment," said Jim Hecker, environmental enforcement director at Public Justice and lead lawyer for the West Virginia Highlands Conservancy, which brought the case.
DEP spokeswoman Kathy Cosco said agency officials are disappointed with the ruling and are considering their options.
Eventually, the court ruling could force the DEP and state lawmakers to increase coal taxes to fund millions of dollars of pollution reductions at former coal-mining sites across West Virginia. It also could affect how the DEP handles permit applications for future operations where acid mine drainage is predicted to continue after mining is completed.
In rejecting the DEP's appeal of Keeley's earlier decision, a three-judge panel of the 4th Circuit turned down arguments that requiring permits and pollution compliance at these abandoned mines was impractical, if not impossible.
"These arguments about the heavy burdens imposed by the permit program are hardly novel," Judge J. Harvie Wilkinson wrote in the 17-page 4th Circuit decision. "Any time Congress imposes a permit scheme, some regulated entities will complain that the permits impose onerous costs and will led to all manner of hazardous consequences. We are not in the business of rewriting laws whenever parties allege it is difficult to comply with them."
The 4th Circuit also rejected the DEP's argument that it did not have to obtain permits because the original pollution was caused not by the agency, but by coal companies that operated mines at the sites.