CHARLESTON — Last week, the Republican majority in a committee of West Virginia lawmakers voted that if coal operators cause damage to a home or other structure due to underground coal mining, those coal operators, and not the residents, would get to decide how they want to make up for the damages.

“I think most West Virginians would be really shocked to hear that this kind of change was being made,” said Del. Barbara Evans Fleischauer, D-Monongalia, “and I think it’s wrong.”

Currently, West Virginia state law says that if mining subsidence — when mining causes the land to sink, collapse or crack — damages structures such as homes above ground, coal operators shall either repair the damage or compensate the owners the amount that the structure lost in value. In many cases in West Virginia, residents own their homes and surrounding land, but not the rights to resources underground.

In 2012, McElroy Coal Company mined coal using the long wall mining method under the property of Michael and Patricia Schoene in Marshall County, damaging their home. They filed a lawsuit in Marshall County circuit court.

A jury awarded them $547,000 — $350,000 for repairs to their home, $172,000 for repairs to the land, and $25,000 for annoyance, inconvenience, aggravation and loss of use.

McElroy appealed the decision. As part of their case, they argued that the coal operator gets to choose the remedy — compensation or repair, while the Schoenes argued that the law didn’t specifically state who decides.

The West Virginia Supreme Court, in a January 2018 decision written by Justice Allen Loughry, found that the code was ambiguous and that the owner of the damaged structure should decide which remedy.

Loughry wrote that the primary purpose of the West Virginia Surface Coal Mining and Reclamation Act is “the protection of the public from the potentially destructive effects that mining may have on our lands, forests, and waters.” He also wrote that statutes “which are remedial in their very nature should be liberally construed to effectuate their purpose.”

Loughry no longer sits on the bench. He was sentenced in February to 24 months in federal prison on 10 charges related to misuse of a state vehicle and credit cards.

During the 2019 legislative session, the Legislature passed a coal mining bill asking the Department of Environmental Protection to consider altering that area of code to match federal code.

Coal industry representatives, including Murray Energy, Tunnel Ridge LLC, and the West Virginia Coal Association, sent comments to the DEP, asking them to give the coal operators more control. They said that the Supreme Court decision was leading to more litigation.

Metikki Coal proposed the specific language — adding to the law the words “At the operator’s election” before the sentence describing the two remedies.

The DEP then proposed a rule not altering that section of code, but adding a section clarifying that the DEP doesn’t adjudicate property rights disputes.

In the West Virginia Legislature’s rule-making review committee last Wednesday, lawmakers voted on whether to approve the DEP’s rule.

Sen. Ryan Weld, R-Brooke, majority whip, proposed an amendment to add the exact language proposed by Metikki, giving coal operators say over which remedy is chosen.

Weld argued that before the West Virginia Supreme Court decision, coal operators historically decided the appropriate remedy. He also said it was his understanding that federal law gives coal operators that authority.

But Jason Wandling, general counsel for the DEP, said in testimony that nothing in the federal rule “says the permittee gets to pick or the landowner gets to pick.” Wandling also said that historically, DEP “required the permittee and the landowner to come to an acceptable resolution between themselves, or to take that to circuit court.”

Del. Larry Rowe, D-Kanawha, said that it would be “unusual to have the wrong-doer have the selection of how to compensate the injured party.”

Del. Brandon Steele, R-Raleigh, argued that the homeowner would know they don’t own the mineral rights.

“The party that’s going to be financially responsible for the loss is going to make a determination as to which remedy to elect, no different than a home insurer or an auto insurer,” he said.

Del. Barbara Fleischauer, D-Monongalia, said that most West Virginians would see the issue “as a matter of right and wrong.”

“I think that the practice of the agency saying that the parties should work it out has a long history,” she said. “I don’t think that we should depart from that history by adjusting the scales in this manner.”

In an 8-4 party-line vote, lawmakers voted to approve Weld’s proposal.

Those voting to give coal operators the say were Weld; Steele; Sen. Mark Maynard, R-Wayne; Sen. Patricia Rucker, R-Jefferson; Sen. Dave Sypolt, R-Preston; Del. Geoff Foster, R-Putnam; Del. Jim Butler, R-Mason; and Del. Patrick Martin, R-Lewis.

Those voting no were Rowe; Fleischauer; Sen. Stephen Baldwin, D-Greenbrier; and Sen. Glenn Jeffries, D-Putnam.

“We are taking the ambiguity out of it,” Weld said.

The rule now goes to the full Legislature for final approval. The legislative session begins next month.

Email: ebeck@register-herald.com and follow on Twitter @3littleredbones

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