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Judge: Bill doesn't shield mining firms from water lawsuits

Read the judge's ruling here.

 

CHARLESTON, W.Va. -- A bill backed by the coal industry and the Tomblin administration will not shield mine operators from citizen group lawsuits for violations of West Virginia's water quality standards, a federal judge ruled this week.

U.S. District Judge Robert C. Chambers concluded that the legislation passed in 2012 does not protect Alpha Natural Resources from a lawsuit over alleged violations of the state's standard for toxic selenium.

The judge issued the ruling Thursday in a case in which Coal River Mountain Watch said discharges from Alpha's Brushy Fork coal-slurry impoundment in Raleigh County are causing selenium violations downstream.

Under the federal Clean Water Act, citizen groups can bring suit in federal court to try to stop violations of water pollution standards.

In West Virginia, citizen groups represented by lawyers from Appalachian Mountain Advocates have been successful in using such lawsuits to force companies to curb selenium discharges that have been linked to deformed fish and reduced fish populations downstream from mountaintop removal operations.

Last year, Sen. Art Kirkendoll, D-Logan, successfully pushed legislation so that coal companies would be deemed in compliance with state water pollution laws if they meet discharge limits for specific chemicals listed in their permits.

Industry officials argued that this language would protect them from citizen lawsuits that targeted selenium. In cases like the Bushy Fork one, the water pollution permit does not specifically limit selenium discharges, even though the state has a separate in-stream water quality standard for the substance.

In ruling that the legislation did not protect Alpha from the Brushy Fork lawsuit, Chambers noted that state regulations also require all coal-related water pollution permits to prohibit any mining discharges from causing in-stream water quality violations of the sort Coal River Mountain Watch alleges exists downstream from the impoundment.

"The permit shields provided by federal and state law do not provide [Alpha] protection from enforcement action if this permit condition is violated," the judge said in a 36-page ruling.

Chambers said that, by requiring water quality standard compliance in addition to meeting specific chemical discharge limits, the state's rules provide "a backstop -- a minimum level of compliance required of permit holders."

"WVDEP evaluates a permit application and imposes specific effluent limitations for those pollutants that it estimates threaten water quality standards. In no event, however, may a permit holder discharge pollutants that cause a violation of water quality standards," the judge wrote.

"This has the effect of protecting water quality standards even regarding pollutants for which WVDEP did not establish specific permit effluent limitations. As a backstop, this provision protects water quality standards that WVDEP did not anticipate would be threatened based on the discharge levels reported in a permit application."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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