Environmental lawyers fear that a recent decision by the West Virginia Supreme Court could deter lawsuits from people affected by mining operations.
The state's highest court overturned a lower court ruling that ordered the state Department of Environmental Protection, or DEP, to require Eastern Associated Coal LLC to provide emergency water for the two dozen families living downstream of Clear Fork Creek whose well water was contaminated, allegedly by a coal slurry impoundment at Eastern's Kopperston No. 4 Mine.
ERP Environmental Fund, Inc., which succeeded Eastern and now holds the permit in the mining area, appealed the decision, and the Supreme Court ruled that the circuit court judge lacked the authority to order the DEP to provide replacement water.
When the residents filed their complaint in 2011, the DEP undertook an investigation to see if the impoundment was the source of the groundwater issues.
At the end of its investigation, DEP specialist Dustin Johnson determined that "the abandoned slate dump adjacent to Eastern's impoundment was the cause of the water standard exceedances," according to the Supreme Court's ruling. He also noted that there was no evidence of leakage from the impoundment that would contaminate the residents' well water.
Despite the DEP's findings, "the circuit court proceeded to create the predicate finding of contamination by cherry picking from the evidence adduced in this case," the Supreme Court wrote.
"Our reading of the legislative scheme at issue makes clear that a finding by the DEP of contamination, diminution, or interruption to an owner's water supply is a prerequisite to the issuance of any water replacement relief under [Surface Mining Control and Reclamation Act]."
"…the DEP had a duty to issue a notice of violation only upon its finding of a specific violation of SMCRA. But as the record reveals, the DEP never found any evidence that SMCRA had been violated by Eastern, as alleged in the residents' complaint," it added.
Pat McGinley, a West Virginia University environmental law professor, called the Oct. 5 ruling "vague and unclear."
"It will give coal company lawyers the opportunity to argue that nobody is entitled to water replacement unless [the] DEP finds the permittee was responsible," the Charleston Gazette-Mail quoted him as saying.
Kevin Thompson, an attorney for the residents, said the decision "guts the ability of coalfield residents to stand up for themselves when heavy metals from slurry impoundments contaminate their well water."
Thompson is considering an appeal to the U.S. Supreme Court, the report said.