Pictured in this photo submitted by Coal River Mountain Watch in January 2023 is what the Raleigh County-based environmental nonprofit says was unreclaimed highwall. The Special Reclamation Fund Advisory Council is charged with overseeing the Special Reclamation Fund key to mine land reclamation and has a full complement of at-large members as of this month.
Pictured in this photo submitted by Coal River Mountain Watch in January 2023 is what the Raleigh County-based environmental nonprofit says was unreclaimed highwall. The Special Reclamation Fund Advisory Council is charged with overseeing the Special Reclamation Fund key to mine land reclamation and has a full complement of at-large members as of this month.
An advisory council established to ensure the stability of a state fund key to the reclamation of abandoned mine lands is fully seated after the exit of a statutorily required member representing environmental organizations.
The West Virginia Senate approved nominations by Gov. Jim Justice to the Special Reclamation Fund Advisory Council this month that included the chairperson of the West Virginia Chapter of the Sierra Club, four months after state Department of Environmental Protection officials told the council’s longtime environmental group representative he was no longer a council member.
Jim Kotcon of Morgantown, the Sierra Club state chapter chair, was one of five appointees named by Justice to the council in a March 9 letter to the Senate.
Kotcon’s appointment follows DEP officials telling longtime environmental representative John Morgan he was no longer a council member on a call with DEP officials on Oct. 31.
DEP spokesperson Terry Fletcher said Morgan was removed because he isn’t a West Virginia resident. Fletcher pointed to a December 2017 email from Justice’s office to Morgan indicating he could no longer serve on the council because he wasn’t a state resident.
A Lexington, Kentucky, resident, Morgan noted his name and address have been listed along with those of other council members in the council’s annual reports to the Legislature since 2017.
Neither the Governor’s Office nor the DEP responded to requests for comment on their statutory basis for determining non-state residents may not be council members.
“This should have been handled in a way to allow environmental groups to participate,” Mike Becher, a senior attorney with Lewisburg-based Appalachian Mountain Advocates, told the Gazette-Mail in November.
Chapter 22, Section 1, Article 17 of state code establishing the Special Reclamation Fund Advisory Council doesn’t include residency requirements.
West Virginia Senate Communications Director Jacque Bland said in a November email that, generally, when a section of state code is silent, “there’s no requirement either way.”
Then-West Virginia Secretary of State’s Office General Counsel Donald Kersey indicated in November he wasn’t aware of state code requiring state residency to serve on the council but did not offer an opinion on the legality of Morgan’s removal.
Morgan said he received the email but that there was no follow-up from anyone and that he never submitted a letter of resignation. Morgan recalled his council participation was never questioned over the past roughly six years since then.
Fletcher said a review of agency-related board and council memberships revealed Morgan was removed from the council in a January 2018 letter and that the DEP said the agency was unsure whether Morgan received the notice.
West Virginia environmental groups recommended Morgan, Kotcon and Delegate Evan Hansen, D-Monongalia, for the open environmental representative position following Morgan’s ouster.
West Virginia Rivers Coalition executive director Angie Rosser said her group was pleased Justice moved to fill the vacancy with one of the recommended appointees. The DEP had turned to the West Virginia Rivers Coalition to suggest potential candidates to replace Morgan, and the coalition consulted with other groups to make their recommendations.
Kotcon, a longtime associate professor of plant pathology at West Virginia University, said he appreciates the chance to serve in the role and recalled a 2021 state Legislative Auditor’s Office report finding lawmakers and environmental regulators risked letting the state’s mining reclamation program slip into insolvency through gaping holes in statutory and permitting oversight.
“I hope to call attention to these needs, and thereby help protect both our taxpayers as well as the land and water threatened by unreclaimed mine sites,” said Kotcon, whose term ends June 30, 2029.
Report warned state officials mismanaged fund
The Special Reclamation Fund Advisory Council’s main purpose is ensuring the effectiveness and financial stability of the Special Reclamation Fund, from which the DEP draws to cover mine reclamation costs that exceed bonds and the Special Reclamation Water Trust Fund designed to pay for water treatment systems on forfeited sites.
State code requires the council to consist of the DEP secretary or their designee, the state treasurer or their designee, the director of the National Mine Land Reclamation Center at West Virginia University and five gubernatorial appointees confirmed by the Senate.
The governor’s appointees must consist of one member each representing the coal industry, environmental protection organizations, coal miners and the general public, as well as an actuary or economist.
Justice’s other confirmed council appointees are:
West Virginia Coal Association vice president Jason Bostic of Pratt, for a term ending June 30, 2028
Christine Risch of Huntington, listed by the Secretary of State’s Office as an actuary/economist, for a term ending June 30, 2024
Ronald Pauley of Sumerco, Lincoln County, for a term ending June 30, 2024
Christopher D. Pence of South Charleston, an attorney who has represented the mining industry in civil litigation and clients in personal injury cases, for a term ending June 30, 2026
The 2021 audit report found the DEP failed to comply with state and federal law in its reclamation program oversight, resulting in missed opportunities to financially shore up a program that will keep requiring hundreds of millions of dollars to reclaim permit sites.
The state mining reclamation program has no known contingency plans if reclamation funds were to become insolvent, the report cautioned.
Rising reclamation costs have devalued permit bonds since the current bonding limits were established by state code in 2001, the report observed, while the cost of reclamation has increased significantly.
Last year, lawmakers passed Senate Bill 1 setting aside $50 million in taxpayer money to create a private, nonstock mutual insurance company they envisioned as a lifeline to coal mine operators.
Senate President Craig Blair, R-Berkeley, the bill’s sponsor, predicted SB 1 would help guard against an expected rise in coal company bankruptcies that could leave the state’s mine cleanup fund — and state taxpayers — on the hook for what could be billions of dollars in mine reclamation obligations.
But SB 1 did not implement any of the report’s recommendations for shoring up funding. Recommendations included DEP compliance with its own reclamation permitting handbook, and denial of applications for permit renewals and revisions for companies found delinquent in paying special reclamation taxes.
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