WVDEP files suit against ERP Environmental Fund


CHARLESTON, W.Va. (March 27, 2020) – The West Virginia Department of Environmental Protection (WVDEP) announced Friday that it filed suit against ERP Environmental Fund, Inc., the company that acquired over 100 mining permits out of Patriot Coal Corporation’s bankruptcy in October 2015. The overwhelming number of ERP’s permits are in West Virginia, with others in Kentucky, Illinois, and Tennessee.


The suit, filed Thursday in the Circuit Court of Kanawha County, alleges that ERP had accumulated 160 violations of the State’s environmental laws, had failed to abate 118 cessation orders, and is the subject of 41 orders to show cause why its permits should not be revoked. The suit seeks the entry of injunctive relief barring ERP from violating the State’s environmental laws and asks the court to appoint a special receiver to assume control of ERP’s assets, operations, and affairs to ensure its compliance with the environmental laws.


In connection with the filing, the WVDEP is also seeking immediate injunctive relief and the temporary appointment of the special receiver, pending further proceedings in the suit.  The WVDEP’s requested temporary order would also bar ERP’s creditors and other parties in interest from taking actions against ERP’s assets and interfering with the special receiver’s actions.


According to the WVDEP’s motion, ERP laid off all its employees and management as of last Friday, March 20, and ceased all operations, leaving its mining sites abandoned and subject to the imminent risk of harm to the environment and the public health and safety.

The WVDEP has proposed that Doss Special Receiver, LLC be appointed as ERP’s receiver. Doss Engineering, Inc. and its principal, R.B. (Barry) Doss, are the principals behind Doss Special Receiver and will perform the functions of the receiver.  Indemnity National Insurance Company, which issued approximately $125 million in surety bonds backing ERP’s obligations under its mining permits, has agreed to provide $1 million in funding to Doss Special Receiver to fund its operations for an initial period of 90 days.


WVDEP Cabinet Secretary Austin Caperton called the suit historic.


“ERP essentially walked off from its operations on Friday, leaving the public exposed to health and safety concerns," he said. "The WVDEP had no option but to step in to seek the appointment of a receiver to take control of ERP’s operations to protect the public health and safety.”


The suit, which the WVDEP had ready for filing Wednesday, was delayed initially as a result of the closing of the Kanawha County Court. The WVDEP has asked that the Court consider its motion for temporary relief immediately. A hearing was scheduled for 1 p.m. Friday.


For more WVDEP news and information, go to www.dep.wv.gov. Also, connect with the agency on all social media platforms. Follow @DEPWV on Twitter, Like us on Facebook at https://www.facebook.com/depwv/, and find us on YouTube by searching “Environment Matters.”


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Terry Fletcher
304-926-0499 ext. 49720