"The statute takes the water's point of view: Water is indifferent about who initially polluted it so long as pollution continues to occur," Wilkinson wrote.
The case focused on long-standing problems with West Virginia's Special Reclamation Fund, a program meant to clean up coal mines that were abandoned after the 1977 federal strip-mining law was created. Mines abandoned before 1977 are covered by the separate Abandoned Mine Lands program and funded by a federal tax on coal production.
Over the years, the special reclamation program has never had enough money. Thousands of acres of abandoned mines sat unreclaimed. Hundreds of polluted streams went untreated.
Historically, the fund has been short of money because coal operators had not posted reclamation bonds sufficient to cover the true cost of mine cleanups at sites they abandon. A state tax on coal production was never set high enough to cover the difference.
Today, the DEP operates treatment systems at dozens of abandoned mine sites, but the agency does not reduce the pollution from those sites enough to meet water quality limits, and does not obtain Clean Water Act permits for the site discharges.
The case before Keeley concerned 18 abandoned sites in north-central West Virginia, while the lawsuit before Copenhaver focused on three abandoned mines in the state's southern coalfields.
Hecker said environmental groups would now try to force the DEP to obtain permits for its discharges at 131 similar mine sites not included in the original lawsuits.
"The district court ordered the state to obtain the required discharge permits, and the 4th Circuit today affirmed that decision," Hecker said. "The state will now have to comply with the water-quality standards it is violating."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.