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The long awaited “Coal Bill” originated yesterday in Senate EIM. “Coal bill” is the colloquialism for the bill, usually originated in committee and pushed straight to the floor, that is written by the West Virginia Coal Association and encompasses all of their legislative goals for the year. The bill (SB 635) has received a number and can be read here.
There are three major parts of the bill:
- Community Impact Statement
- Environmental Standards
- Mine Trespass Act
We consulted with the West Virginia Association for Justice to make them aware of issues with the bill related to mine subsidence. Senator Lindsay made an amendment in committee to strike the new language, 22-3-14 (e), related to subsidence and keep the existing law. The amendment failed upon party lines.
The main environmental issue with the bill was the change related to the Above Ground Storage Tank Act. The language in place as the bill was drafted included a blanket exemption from the ASTA for the coal industry. We were able to work with the coal association and the committee chair to strike that from the introduced language. Instead, a subsection was added that instructs the WV DEP secretary to promulgate a rule for consideration by the 2020 Legislature to incorporate the relevant provisions of the ASTA in the Ground Water Protection Rules for Coal Mining (38 CSR 2F) for tanks and devices located at coal mining operations.
The bill will be on first reading before the full Senate on Monday.
My recollection from almost 30 years ago is that coal mining was/is virtually exempted from Ground Water Protection Rules.
The subsidence provision is frightening because it could re-instate the broadform severance deeds drafted in the 1800s and completely gut the SMCRA/SCMRA provisions that protect property owners from having their homes collapse into a mine void. This provision will enable Jackson Kelly to successfully assert coal baron protections that they wrote into these severance deeds when our mineral wealth was initially stolen from our ancestors.
In my practice, the defendants always win the common law claims using the broad form deed language. Then we find success asserting the statutory protections that the Coal Association is trying to steal.