Coal Tattoo

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There’s an important new ruling out from U.S. District Judge Robert C. Chambers addressing the continuing efforts by West Virginia political leaders to help the coal industry avoid controlling the pollution from their operations.

The ruling, released yesterday and available here, addresses SB 615, a 2012 bill that coal industry lobbyists hoped would shield them from citizen legal actions — especially over violations of West Virginia’s water quality standard for toxic selenium. Specifically, the case involves a lawsuit brought by lawyers from Appalachian Mountain Advocates on behalf of various environmental organizations over selenium pollution from the former Massey Energy (now Alpha Natural Resources) Brushy Fork coal-slurry impoundment in Raleigh County.

Essentially, Judge Chambers ruled that this legislation doesn’t do what coal industry lobbyists — and Alpha’s lawyers in this case — had hoped it would: Protect them from citizen suits like this one. And as readers also know, the success of citizen suits has been forcing coal companies to take greater steps to reduce pollution and — in the case of one company, Patriot Coal — to rework its business plans to phase out large-scale strip mining in Appalachia.

Some readers may recall that the legislation in question, proposed by Sen. Art Kirkendoll, D-Logan, and backed by the state Department of Environmental Protection, set as its goal, “clarifying that compliance with the effluent limits contained in a National Pollution Discharge Elimination System permit is deemed compliant with West Virginia’s Water Pollution Control Act.”  Basically, the idea was that if you stay below the specific permit limits for specific pollutants, then you’re good to go – nobody can come after you for water quality standard violations that may be occurring if those water quality standard violations aren’t tied to violations of those specific effluent limits.

Judge Chambers explains a variety of problems with this approach by the industry and its political supporters, but among them is the simple fact that, the declaration of legislative intent quoted above aside, the actual change to state statute here referred not to complying with effluent limits, but instead said that compliance with a permit … shall be deemed compliance with the Water Pollution Control Act.

In this particular case, the DEP-issued water pollution permit for the Brushy Fork impoundment does not contain a specific discharge limit for selenium. The state does have a water quality standard for selenium, though, and in their suit, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Coal River Mountain Watch and the Sierra Club allege that discharges from Brushy Fork are causing violations of that selenium standard downstream.

To follow this, keep in mind a couple important pieces of legal background: First, West Virginia’s regulations to enforce the federal strip-mining law specifically state that all water pollution discharges from coal-mining operations shall not violate effluent limitations or cause a violation of applicable water quality standards. Second, West Virginia’s NPDES regulations for coal-mining operations require that all permits include a specific provision that discharges from coal mining operations are to be of such quality so as not to cause violation of applicable water quality standards.

Like other NPDES permits for coal operations in West Virginia, the permit for the Brushy Fork impoundment specifies that the facility’s discharges aren’t allowed to cause a violation of the state’s water quality standards — for selenium or anything else.  So, Judge Chambers has ruled, even though DEP did not put a numeric limit on Brushy Fork’s selenium discharge, that permit language means that if the company is causing a water quality violation for selenium, citizens groups can sue to try to stop that pollution.