Judge: Bill won’t shield coal from water quality suits

August 23, 2013 by Ken Ward Jr.


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.

5 Responses to “Judge: Bill won’t shield coal from water quality suits”

  1. Steve says:

    How many cases of selenium toxicity have been proven in west Virginia?

  2. Dianne Bady says:

    A great deal of research has shown mountaintop removal mining-related selenium toxicity in WV streams. Here’s a few descriptions:

    In 2010 WV DEP released a report called “Selenium Induced Developmental Effects in Fish in Select WV Waters”, which documented deformities in fish downstream of MTR – the deformities were of the types known to be caused by excessive selenium.

    In 2011, the National Academy of Sciences published a research review paper by seven scientists, which reported on studies finding excessive selenium in streams immediately downstream of MTR. These scientists reported normal selenium levels in fish in streams upstream of MTR (which would not be impacted by MTR related pollution).

    The Gazette and other media have quoted national stream selenium expert Dr. Dennis Lemley.

    In 2008 Lemley publicly testified that selenium levels immediately downstream of the Hobet MTR complex in Lincoln County “exceed the threshold for major toxic impacts by a factor of 3 or 4.”

  3. Steve says:

    I was asking about human toxicity, sorry.

  4. Cindy Rank says:

    Sorry, Steve, but if we have to wait for “human toxicity” to be demonstrated or proven…… I’m afraid we’d all be lost long ago to all those diseases that mice and rats and other non-human subjects have been subjected to and have led to present day antidotes and diagnosis…

    As far as environmental pollution is concerned, that’s what all the indicator species and indicator pollutants as indicators that if something is wrong or toxic to them, we as humans better take note and avoid any further pollution that might hurt or even kill us in the long run (eg. Mg as agreed to by the coal industry to be used for purposes of identifying constituents of streams that can justifyably be used as bases for SMCRA technology based effluent limits so that the problems don’t escalate to human toxicity levels).

    I don’t know of any or many besides the deplorable test of negro military personnel to determine the impact of chemical warfare that used human beings as subject to text the impact and toxicity of some chemical or the other. [Sorry – especially to Ken – that i don’t have a multitude of links for this reference, but i am about to fix dinner after being away for the weekend for family visits…….]

    I for one know if dead fish are found floating in the stream (as at Dunkard Creek 5 or so years ago) i would not want to consume or even wade in the water. But along the same vein, if we have (as we DO) some indicator of what pollutants in what volumes
    might kill or deform fish, i surely want our regulatory agencies to step up to the plate and at the very least adopt the precautionary principle of avoiding all possible damage until further pollution is proven harmless (or at least harmless to some tangible degree)

    At my 70th birthday i cringe that we may not have learned that lesson yet.

  5. Ken Ward Jr. says:

    Just a very friendly reminder of one of Coal Tattoo’s comments section rules:

    Please provide links or citations to published material to back up your views, when appropriate.

    And let’s go easy on the trolling, Steve. See this link if you don’t know what I’m talking about:



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