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 kw...@wvgazette.com or 304-348-1702.