OHIO COUNTY, W.Va. (WTRF) – The thought of a coal company causing the traffic jams on I-70 has fired up many drivers and left even more with questions.

Part 1: Traffic on I-70 isn’t for ‘construction’, It’s coal

Longwall mining caused all the ground near Stoolfire Road to drop an estimated 4 feet.

Tunnel Ridge’s passing under that land led to the need to replace the cement bridges that just weeks ago saw 31,800 vehicles per day on I-70.

So, how is a company allowed to do this? 

That question took 7NEWS to Patrick McGinley, a law professor at West Virginia University who has spent the majority of his life working on coal law and regulation. 

“This coal company could have designed the mine in a way to avoid undermining I-70. What would that mean for them? Less profit.” 

Patrick McGinley, Professor of Law at West Virginia University College of Law

Delegates reiterated nothing could be done to stop Tunnel Ridge LLC. from mining. They say the drivers of I-70 do not have rights.

Understanding the ‘rights,’ we must first understand the coal laws.

When the federal government enacted eminent domain in the 1950s to build the interstate, it purchased the ‘surface rights.’ In fact, most West Virginians, including the Department of Highways, do not own ‘mineral rights.’ There was no need. It was not until 1970 that a new form of mining, ‘longwall mining,’ entered.

“It’s really not a question of property rights,” said McGinley. “It’s a question of the enormous impact of coal mining on literally millions of travelers over the next 20 years.” 

In 1977, Congress passed a law stopping mining within 100 feet of a public road. McGinley says this rule could have been used to stop the WV DEP permit. But now that it was ‘okayed,’ McGinley says the ‘mineral rights’ of the early 1900s wash Tunnel Ridge’s hands clean of liability for any of the accidents on I-70 or damages to cars caused by subsidence. 

From 7NEWS’ investigation, undermining an interstate other than I-70 was done once before: I-79 near Waynesburg, 18 years ago. (PennDOT) 

“Most of the subsidence happens in the first couple of weeks.” 

Tony Clark, District 6 WV DOH Engineer:

“By the way, that subsidence will continue for years,” added McGinley

But can it be argued that in the same way the interstate came about as a ‘public benefit,’ now be argued that it is a ‘public risk’ to allow the mine to continue mining into 2038?

Oh, absolutely,” responded McGinley. “This is a public nuisance under the common law. And it’s a responsibility of the government to protect its citizens. It doesn’t choose to do that because coal is king.”

7NEWS asked the Governor for comment during his COVID press briefing if he would you ever consider taking action to stop the mine?

To say, ‘Governor are you willing to just stop it?’ Well I don’t have any idea if I have the power to do that. And, I would not do that without the recommendation of these agencies (DEP, DOH) if I had the power.”

Gov. Jim Justice, (R) West Virginia

After placing multiple calls, 7NEWS has yet to hear back.

A spokesperson for Tunnel Ridge, LLC responded to this story in an email to 7News Thursday:

“The bridges were removed as part of a coordinated bridge replacement project timed with mining activity to minimize the inconvenience to the travelling public. Mining under the Stoolfire overpass occurred after the concrete bridges were removed.”  

Statement from Tunnel Ridge, LLC regarding Interstate 70