Nonprofit Groups Sue Surface Mining Agency Over Water Pollution

Three nonprofit environmental conservancy organizations based in West Virginia sued the Office of Surface Mining Reclamation and Enforcement (OSMRE) and its acting director, Glenda Owens. The lawsuit follows from the OSMRE’s alleged failure to take timely legislative action following a notice from the West Virginia Department of Environmental Protection (WVDEP) regarding water pollution. 

The plaintiffs alleged that unreclaimed mines in West Virginia are leaking selenium and polluting the water in the area. They asserted that the duty to fix the problem falls to the WVDEP, who cannot take action without an amendment from the OSMRE.

The plaintiffs include the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, and the Sierra Club. They filed a prior suit against the WVDEP, which prompted the department to notify the OSMRE of the potential need for an amendment on December 30, 2020. 

The WVDEP is required to notify the OSMRE of “any significant event or proposed changes which affect the implementation, administration, or enforcement of the approved State program.” In this case, the State program is West Virginia’s Surface Mining Control and Reclamation Act (SMCRA), which the plaintiffs claim to be violated and in need of amending due to polluted water.

According to the complaint, following notification from the WVDEP, the OSMRE must, within 30 days, “determine whether a state program amendment is required and notify the State regulatory authority of the decision.” Their failure to respond within 30 days led to the plaintiffs’ sending notice of the OSMRE’s violation on March 12, 2021 and their subsequent intent to file suit against them. 

The environmental organizations asserted that Owens, the OSMRE director, is responsible for ensuring that the OSMRE “meets its obligations under the SMCRA,” and that by failing to do so, Owens has “violated her non-discretionary duty.” The plaintiffs are represented by the Appalachian Center for the Economy and the Environment.