CONSOL settlement is a first

Written by: Dan Radmacher
December 6, 2011

In a landmark settlement, a coal company has agreed for the first time to attempt to deal with biological impairment downstream from a valley fill.

The settlement, which still requires approval by federal court, was reached with Fola Coal Company, a subsidiary of CONSOL Energy. Attorneys for Appalachian Mountain Advocates and Jim Hecker of Public Justice had sued Fola on behalf of the Sierra Club and the West Virginia Highlands Conservancy, alleging that its Surface Mine No. 3 in Nicholas and Clay counties, West Virginia, was violating state and federal water quality standards by causing elevated levels of conductivity in the Broadtree Branch, which feeds into 20 Mile Creek, part of the Gauley River watershed.

When coal is mined, rock and other material is exposed to air and water for the first time in hundreds of thousands, perhaps even millions, of years. That material is broken up and reacts with oxygen and water. Many natural elements dissolve and run off in the water. Those ions, including sulfates, increase the ability of water to conduct electricity. Thus the measure of specific conductivity turns out to be the best way to measure the impact of a wide variety of pollutants downstream from a mine. (To learn more about conductivity, click here.)

On Nov. 20,  a settlement was reached that would require Fola to attempt a stream restoration project to lower the level of pollutants in Broadtree Branch. After that project is complete, the water will be monitored and the effectiveness of the project will be assessed by a Special Master of Biology. If that project fails to bring the mine into compliance with water quality standards, Fola will have to build a treatment or abatement system.

“It’s scientifically indisputable that valley fills cause high conductivity and impair life in streams,” said Appalachian Mountain Advocates Executive Director Joe Lovett. “This coal company has agreed to remedy that.”

Lovett also pointed out that this was the first time a coal company had agreed to comply with the narrative water quality standard as opposed to numerical limits on particular pollutants. This is important as scientific research has been clearly showing significant ecological damage that appears to be related to the toxic soup of discharge from valley fills that can’t be easily linked to a particular pollutant at a particular level.

As Dr. Margaret Palmer, director of the National Socio-Environmental Synthesis Center and a professor at University of Maryland’s Department of Entomology who has done much of the research on this conductivity, it’s the net effect of a number of pollutants that appears to be causing the damage. Conductivity is the best measure of that effect.

In a recently issued guidance document, the U.S. Environmental Protection Agency recommended that state and federal regulators take into account the scientific evidence about conductivity when setting permit limits. In addition, the West Virginia Environmental Quality Board has ruled that conductivity limits should be included in a valley fill permit. Conductivity is almost certain to become a bigger issue in permitting and enforcement of mountaintop removal mining.

In addition to the stream restoration project (and fallback plans for a treatment or abatement system), Fola also agreed to pay a $25,000 penalty to the federal government and make a $200,000 contribution to the West Virginia Land Trust to help fund a riparian area preservation project WVLT is working on with the West Virginia College of Law’s Land Use and Sustainable Development Clinic. If the stream restoration project fails, Fola will make an additional $500,000 donation to WVLT.

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