Groups send notice of intent to sue OSMRE over failure to ensure individuals can get replacement drinking water when theirs is contaminated

CHARLESTON -- Today, the Sierra Club, Ohio Valley Environmental Coalition, and West Virginia Highlands Conservancy sent a notice of intent to sue (NOI) to the Office of Surface Mining, Reclamation, and Enforcement (OSMRE). The notice alleges that OSMRE has failed to take action under the Surface Mining Control and Reclamation Act (SMCRA) to clarify the options available to community members who believe their drinking water has been harmed by coal mining. 

Both SMCRA and the West Virginia Surface Coal Mining and Reclamation Act (“WVSCMRA”) require surface mine operators to replace the water supply of a property owner when the operator has caused contamination, diminution, or interruption to the supply. The water replacement provisions in the two laws empower affected citizens to proceed directly to federal or state court to enforce their rights. However, a 2017 opinion from the Supreme Court of Appeals of West Virginia in State ex rel. ERP Environmental Fund, Inc. v. McGraw held that a determination of water pollution impact must first be made by the West Virginia Department of Environmental Protection (WVDEP) before an individual can seek relief. This constitutes a change that makes the state program inconsistent with SMRCA and inappropriately empowered WVDEP to act as a gatekeeper in all water replacement cases.

After the groups sent an NOI to WVDEP in January for failing to notify OSMRE about this change to the program, the department finally sent notice to the OSMRE. However, SMCRA requires OSMRE to respond within 30 days, which it has failed to do. In this case, the law requires OSMRE to respond by clarifying that the McGraw decision is inconsistent with SMCRA, and to reject any change to West Virginia’s program that may have resulted from the McGraw decision.

The groups sending today’s notice of intent to sue letter are represented by attorneys with Appalachian Mountain Advocates.

Betsy Lawson, Sierra Club member and a resident of western Monongalia County, released the following statement:

"It's critical that families who believe their drinking water was harmed by coal mining be able to go directly to court to get the problem fixed. When drafting the Surface Mining Act, Congress understood that the primary concern of mining regulators like WVDEP may not always be protecting communities like ours. The Office of Surface Mining Reclamation and Enforcement must remind WVDEP that the law provides communities with a direct path to the courts."

Peter Morgan, Senior Attorney at the Sierra Club, released the following statement: 

“It’s once again disappointing that it requires environmental advocates to force state and federal regulators to follow the letter of the law when so much is at stake. The ruling in McGraw threw up needless and inappropriate barriers to West Virginians seeking remedy to water pollution in their backyards. It is our hope that OSMRE moves swiftly in its guidance on this change to the state program and rejects it. The law is clear, and when coal mining threatens West Virginians’ water, they have a right to go directly to state and federal courts without passing through the West Virginia Department of Environmental Protection, an agency that has time and again refused to protect the interests of everyday citizens in the state.” 

Vivian Stockman, Ohio Valley Environmental Coalition co-director, released the following statement: 

“Of course, water is essential to life itself, and coal companies are prohibited from destroying people’s access to clean drinking water. It is unconscionable to make--the WVDEP—a state agency with a long history of favoring polluters over people’s health—the gatekeeper that people must go through to obtain replacement water.”

Cindy Rank, West Virginia Highlands Conservancy, released the following statement:

“Lord only knows how difficult it already is for residents to prove mining operations caused the loss or contamination of their water supply. Adding WVDEP into the process only prolongs the agony families now go through and further undercuts the Surface Mine Act. OSMRE has a duty to protect citizens and must now right this wrong-headed decision by the West Virginia Supreme Court of Appeals.”