“Overwhelming Scientific Evidence” That Alex Energy and Elk Run Coal Mines Failed Clean Water Act Protections
Huntington, WV—(ENEWSPF)—June 6, 2014. Yesterday, in a landmark decision, the U.S. District Court for the Southern District of West Virginia found that conductivity pollution from mountaintop removal mines owned by Alex Energy and Elk Run Coal Company violate key clean water protections. This is the first ever federal court decision to find that high conductivity discharges from coal mines are hurting streams. The citizen lawsuit, originally filed in March 2012, alleged that mine runoff from four mines operated by the companies in Boone and Nicholas Counties has contaminated water in Laurel Creek and Robinson Fork with sulfate and other dissolved solids that make those waterways toxic to aquatic life. The citizen groups that brought this case claimed that the mines were violating “narrative” water quality standards established in the Clean Water Act which prohibit the discharge of pollutants that cause harm to aquatic life or have significant adverse impacts on streams. This suit was brought by Ohio Valley Environmental Coalition, Sierra Club and West Virginia Highlands Conservancy.
In its decision, the district court underscored the damage that surface coal mines are causing to West Virginia streams, observing in its decision that:
“Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine. These West Virginia streams . . . were once thriving aquatic ecosystems.”
The issue of conductivity pollution from coal mines in Appalachia and its effect on receiving streams has been hotly contested since EPA released guidance on the subject in draft form in April 2010. That guidance, which was issued in final form in July 2011, was eventually struck down by a federal court based on alleged procedural errors. Since then, citizens have been pressuring EPA to undertake a formal rulemaking to establish standards for conductivity.
“This decision further confirms that the science overwhelmingly shows that coal mines in Appalachia are harming streams due to conductivity pollution,” said Aaron Isherwood, Managing Attorney for the Sierra Club. “The court’s ruling further underscores the need for EPA to engage in rulemaking to protect Appalachian streams from conductivity pollution that is very harmful to aquatic life.”
The court found that there are significant levels of conductivity downstream from mines owned by Elk Run Coal and Alex Energy. The court also found that mining activities cause this conductivity pollution and that conductivity in streams below these mines can be as much as 10 times above safe levels for local aquatic life. Compliance with narrative water standards is typically determined by taking field measurements of the number and diversity of aquatic life in the stream, rather than by only measuring the amount of chemicals in the discharged water. The streams that receive the mine discharges at issue in this case show significant damage to aquatic life compared to that in unpolluted streams.
“This problem is endemic to coal mines throughout Appalachia that use huge valley fills to dispose of their mining waste,” said Jim Hecker, co-counsel in the case and Environmental Enforcement Director at Public Justice. “This decision will force mining companies to internalize the enormous treatment costs that they are currently avoiding and imposing on the public. In an earlier West Virginia case that was settled, a mining company estimated that the cost to construct a treatment system to remove conductivity from a 1000 gallon/minute flow of wastewater is over $18 million.”
“Pollution such as the high conductivity discharges addressed in this litigation represents the steady degradation of streams that is stealing the future from generations to come,” said Cindy Rank of the WV Highlands Conservancy. “Passage of the Clean Water Act over 40 years ago was a wise and prescient recognition that waters of the US can support a healthy human population and economy only when those waters are healthy themselves. Today’s court decision makes it clear that the integrity of our streams must be protected from the real danger of being destroyed by the millions of tiny cuts made by activities like the coal mining operations along Laurel Creek and Robinson Fork.”
The U.S. Environmental Protection Agency has estimated that nine out of 10 streams downstream from valley fills associated with coal mines are biologically impaired. But neither the state of West Virginia nor the EPA has taken action to require compliance and cleanup of the impaired streams. Congress authorized citizen suits under the Clean Water Act to enforce the law directly against permit violators like Elk Run and Alex Energy.
“As the court recognized in its decision, the West Virginia Department of Environmental Protection is not enforcing its own narrative standards against mountaintop removal coal mines,” said Vivian Stockman of the Ohio Valley Environmental Coalition. “Unfortunately, that means it’s up to citizens like us to enforce the law and protect our precious streams. Ultimately, protecting streams is not just for aquatic life, it is for us.”
“As Judge Chambers pointed out, West Virginia’s headwater streams were ‘once thriving ecosystems’ and the state used to have ‘abundant clean water’” said Jim Sconyers, Chapter Chair of the West Virginia Sierra Club. “Pollution like this, which as the court determined is unlawful, must stop so our clean water can once again become abundant.”
The next step in the case will be to determine the appropriate remedies for these permit violations, in the form of civil penalties payable to the U.S. Treasury and injunctive relief to clean up the streams. West Virginia Highlands Conservancy, Sierra Club and Ohio Valley Environmental Coalition are represented in this case by Jim Hecker of Public Justice and Derek Teaney, Joe Lovett, and Mike Becher of Appalachian Mountain Advocates.
Source: sierraclub.org
