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 that are abandoned. A state tax on coal production was never set high enough to make up the difference.
The problem dates back to the 1980s, when the state first obtained approval from the federal Office of Surface Mining Reclamation and Enforcement to run its own strip-mining program under the 1977 law.
The late U.S. District Judge Charles H. Haden II had chastised regulators for failing to fix the problem, saying they had created a "climate of lawlessness." But Haden declined to step in after then-Gov. Bob Wise's administration increased the reclamation tax and created the advisory council to guide DEP and the Legislature in ensuring adequate funding for mine cleanups.
The financial problems are only expected to get worse, especially after environmental groups successfully sued DEP to force the agency to improve water pollution treatment practices at abandoned mine sites.
Last March, lawyers for the West Virginia Highlands Conservancy sought to reopen their lawsuit, which seeks to force OSM to take over the state reclamation program and force reforms.
Conservancy lawyers acted only after lawmakers ignored the DEP advisory council's recommendations to increase the mine cleanup tax, following a letter in which DEP Secretary Randy Huffman opposed the council's plan.
Like Haden, U.S. District Judge John T. Copenhaver Jr. has publicly criticized the state's inaction, but so far Copenhaver has not ruled on the motion to reopen the lawsuit.
This year, the administration will support the advisory council proposal, said Kimberly Osborne, press secretary for Gov. Earl Ray Tomblin. Osborne noted that advisory council member Bill Raney, president of the West Virginia Coal Association, voted in favor of the recommendation.
"Although [Tomblin] does not believe that we need to be increasing taxes and he does not believe we need to be placing additional unnecessary burdens on the coal industry, he is supportive of the recommendation," Osborne said in an e-mail message. "By increasing this fee, we will maintain the integrity of our current bonding system, support the special reclamation fund, and the citizens of this state will not be threatened by general tax increases on this issue."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.