Verdict in Fola lawsuit confirms harm from conductivity

Posted on by Dan Radmacher

In late January, U.S. Circuit Judge Robert Chambers once more found that high conductivity levels resulting from pollution flowing from mountaintop removal mining operations harm the biological integrity of streams and violate water quality standards.

On Jan. 27, Chambers ruled that Fola Coal Co., a unit of Consol Energy Inc., had violated its National Pollutant Discharge Elimination System permit by discharging high amounts of ionic pollution — salts and total dissolved solids — into the Stillhouse Branch.

“The water chemistry of this stream has been dramatically altered, containing levels of ionic salts — measured as conductivity — which are scientifically proven to be seriously detrimental to aquatic life,” Chambers wrote in the ruling.

The high levels of conductivity significantly impacted life in the stream.

“As key ingredients to West Virginia’s once-abundant clean water, the upper reaches of West Virginia’s complex network of flowing streams provide critical attributes — ‘functions,’ in ecological science — that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation and important economic uses,” Chambers wrote.

Appalachian Mountain Advocates brought this lawsuit on behalf of the Sierra Club, the Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy. This verdict echoes another ruling in June 2014 that found Alpha Natural Resources responsible for conductivity pollution near its mines. The U.S. 4th Circuit Court of Appeals denied an interlocutory appeal to that ruling, leading to a settlement in which Alpha agreed to clean up the streams.

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Selenium settlements resolve multiple lawsuits

Posted on by Dan Radmacher

On Dec. 19, 2014, Appalachian Mountain Advocates announced three settlements with Central Appalachian coal companies that will require the companies to treat unlawful selenium discharges into West Virginia’s waters, to contribute hundreds of thousands of dollars to efforts to protect West Virginia’s streams and riparian areas, and to pay civil fines to the U.S. Treasury.

The settlements resolve multiple citizen suits under the U.S. Clean Water Act and Surface Mining Control and Reclamation Act. The suits were brought by the Sierra Club, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, and Coal River Mountain Watch, represented by Appalmad.

In each case, the U.S. District Court for the Southern District of West Virginia had held the coal companies liable for violating federal environmental law for discharging selenium — a toxic pollutant that causes deformity and death in aquatic species — in concentrations that caused violations of water quality standards. After the court held the companies liable, they agreed to treat their discharges.

The cases involved two subsidiaries of CONSOL Energy, Inc. (Fola Coal Company, LLC, and CONSOL of Kentucky, Inc.) and seven subsidiaries of Alpha Natural Resources (Alex Energy, Inc.; Aracoma Coal Company, Inc.; Bandmill Coal Corporation; Highland Mining Company; Independence Coal Company, Inc.; Kanawha Energy Company; and Marfork Coal Company).

The settlements will require the companies to treat selenium from 14 discharge points in Mingo, Clay, Raleigh, Logan, Boone, Kanawha, and Nicholas Counties — including the Brushy Fork Slurry Impoundment. Additionally, the settlements require the coal companies to contribute a total of $778,500 to the West Virginia Land Trust for special environmental projects and to pay a civil fine of $86,500.

Appalachian Mountain Advocates has been prosecuting these companies for the violations at issue since 2012.  These cases were precedent setting because they established that polluters in West Virginia could be held liable for violating water quality standards even if their Clean Water Act permits did not place specific numeric limits on a particular pollutant.

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Conductivity settlement to have huge impact

Posted on by Dan Radmacher
Photo courtesy of Vivian Stockman / Flyover courtesy An aerial view of Hobet 51.

Photo courtesy of Vivian Stockman /
Flyover courtesy
An aerial view of Hobet 21.

A settlement agreement has been reached between a group of environmental groups and Alpha Natural Resources over the company’s pollution from mountaintop removal mining operations.

The West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition and Sierra Club — represented by Appalachian Mountain Advocates and Public Justice — settled a lawsuit challenging Alpha’s violation of narrative water quality standards.   Narrative water quality standards don’t place numeric limits on pollutants, but instead require pollution to remain below a level that would impair a stream’s aquatic ecosystem.

Last summer, Alpha lost a similar case, in a ruling by U.S. District Judge Robert C. Chambers that found that conductivity pollution from mountaintop removal mining caused damage to streams in Southern West Virginia.

Conductivity measures the ability of water to transmit electricity, making it a measure of the level of ionic pollution in a stream. As Chambers wrote, high conductivity not only alters the chemistry of a stream, but results in a stream that is “unquestionably biologically impaired, in violation of West Virginia’s narrative water quality standards.”

The 4th U.S. Circuit Court of Appeals rejected Alpha’s appeal of that ruling.

Under the settlement with Alpha, the company will have to try to improve the health of the streams affected by the conductivity pollution. In the likely event those actions don’t work, the company will have to treat the water to get conductivity to a level the U.S. Environmental Protection Agency believes is not harmful to aquatic life.

Such treatment can be enormously expensive.

Days before this settlement was announced, Patriot Coal was sent notice that the same groups intended to sue over similar issues at Hobet 21, West Virginia’s largest surface mine. Almost every outfall in that huge complex is discharging water with high conductivity levels.

The scientific and legal theories developed by these cases could have an enormous impact. Practically every valley fill across Central Appalachia may be discharging water with high enough conductivity levels to impair aquatic life.

Restoring the biological integrity of all the impacted streams will be incredibly expensive. The coal companies and other entities that have profited from this mining should pay the cost of cleaning up the pollution.

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EPA needs to take over pollution programs

Posted on by Dan Radmacher

Appalachian Mountain Advocates, Sierra Club, Appalachian Voices and a number of state and regional environmental groups have joined together to petition the U.S. Environmental Protection Agency to acknowledge the failure of several Appalachian states to administer and enforce the National Pollutant Discharge Elimination System (NPDES) program.

The petitions ask EPA to withdraw the authorization of these states to run their own NPDES programs and take over enforcement of this vital program.

The groups filed petitions in West Virginia, Kentucky and Virginia. In early January, the groups filed suit against EPA for failing to intervene in West Virginia and Kentucky.

West Virginia
In West Virginia, Appalmad, Appalachian Voices and Sierra Club were joined by the West Virginia Highlands Conservancy and the Ohio Valley Environment Coalition in their petition to the EPA.

The petition highlights the many failures of the West Virginia Department of Environmental Protection to administer its NPDES program. WVDEP routinely issues permits for mining operations that are likely to cause or contribute to violations of the state’s water quality standards of pollutants that don’t have numeric standards. These permits lead directly to damaged streams that suffer biological harm from the pollution.

In addition, WVDEP has failed to issue permits for point-source discharges at abandoned mine land sites or at sites previously permitted by the West Virginia Surface Mining and Reclamation Act that have had their permits and bonds released.

Though these sites continue to produce polluted mine drainage in violation of water quality standards, DEP routinely releases bonds and permits, allowing hundreds of unpermitted discharges from valley fills across the state.

The agency is also issuing illegal permits to itself for point-source discharges at bond-forfeiture sites it is responsible for. These permits do not contain effluent limits on total dissolved solids, sulfates and conductivity that would ensure the state’s water quality standards are not violated.

This is the second time since 2009 that EPA has been petitioned to take over West Virginia’s NPDES program.

In 2010, Appalachian Mountain Advocates, Sierra Club, Kentuckians for the Commonwealth and Public Justice petitioned to have EPA take over Kentucky’s NPDES program, noting that the Kentucky Division of Water (KDOW) had failed to develop protective water quality standards, assure adequate assessment of the current condition of the state’s waters, comply with EPA guidelines on the development of Total Maximum Daily Load (TMDL) programs and issue permits with effluent limits that would protect Kentucky’s waters.

Recently, Sierra Club, Appalachian Mountain Advocates and Appalachian Mountain Advocates submitted another petition to the EPA, citing Kentucky’s changed in its selenium standard from a water-based limit to a fish tissue-based limit. EPA allowed the change on the condition that permits would be considered in violation if the prior water-based limits were exceeded and insufficient fish samples could be obtained. That is not, though, how the standard works. Instead, KDOW allows samplers have been instructed to keep moving down the receiving stream until enough fish tissue is obtained, even if that means going into the next receiving stream. KDOW’s approach allows fish to be completely eliminated from a direct receiving stream without finding any violation.

Kentucky, like West Virginia, has failed to issue NPDES permits for point-source discharges from bond-released sites. It has also authorized discharges from abandoned mine lands under a general permit that includes no enforceable pollution limits.

In Virginia, Southern Appalachian Mountain Stewards joined the petition asking EPA to take over the NPDES program from the Virginia Department of Mines, Minerals and Energy (DMME), the Virginia Department of Environmental Quality and the State Water Control Board.

Virginia’s issues are numerous. It routinely approves incomplete permit applications. It doesn’t consider existing water quality when reissuing permits. It uses “best management practices” instead of numeric effluent limits to address point-source pollution from active mining operations in watersheds that are supposed to be protected by Total Maximum Daily Load limits.

Finally, Virginia actually entered into a settlement agreement with the Virginia Mining Issues Group in which Virginia’s regulatory agencies promised they would take no action when permittees exceed their TMDL wasteload allocations.

Virginia’s failure is easy to document. In the coalfield counties, streams under DMME’s TMDL protection continue to be impaired, some even after a decade of TMDL protection.

In West Virginia, Kentucky and Virginia, state regulators have failed in their duty to enforce the Clean Water Act. By law, EPA should rescind authorization for all three states and take over their programs.

Posted in Coal, Mountaintop Removal, Partners, Water Quality | 1 Comment »

Judge agrees that conductivity pollution hurts streams

Posted on by Dan Radmacher

Appalachian Mountain Advocates has been pursuing a number of legal cases designed to show that mining operations that cause high levels of conductivity downstream are violating water quality standards — and their National Pollutant Discharge Elimination System permits.

That legal theory won important validation in a ruling last summer by U.S. District Judge Robert C. Chambers.

In a case brought by Appalmad on behalf of the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and Sierra Club, Chambers found that conductivity pollution from mountaintop removal mining caused damage to streams in Southern West Virginia.

Conductivity measures the ability of water to transmit electricity, making it a measure of the level of ionic pollution in a stream. As Chambers wrote, high conductivity not only alters the chemistry of a stream, but results in a stream that is “unquestionably biologically impaired, in violation of West Virginia’s narrative water quality standards.”

Narrative water quality standards don’t place numeric limits on pollutants, but instead require pollution to remain below a level that would impair a stream’s aquatic ecosystem.

The lawsuit targeted mines operated by Alpha Natural Resources in Boone and Nicholas counties in West Virginia. Appalmad presented extensive scientific evidence backing the case, including the testimony of Dr. Margaret Palmer, a respected scientist who has been studying conductivity and other pollution issues for years.

Chambers’ ruling established Alpha’s liability for the pollution. The next stage will determine what Alpha must do to fix the problem. There are different treatment methods that could be used to filter out the ionic pollution, all of them quite expensive.

As with the many selenium cases Appalmad has brought against coal companies, the expensive treatment coal companies must undertake represent huge savings to state taxpayers, who would otherwise be stuck with the tab. Appalmad’s selenium cases helped convince Patriot Coal to get out of the mountaintop removal mining business.

The conductivity cases may have an even broader impact. Selenium pollution depends on geologic factors — it’s worse in some places than others. Conductivity pollution, on the other hand, appears to occur at some level any time a valley fill is constructed or a lot of spoil material at a mine site is exposed to water.

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Absentee ownership holds Appalachia back

Posted on by Dan Radmacher

No other single factor has done more to hold Appalachia back economically than the huge percentage of land in the region owned by absentee landholding companies.

In 1974, Tom Miller, a reporter for the Huntington Herald-Dispatch, wrote a striking series entitled, “Who Owns West Virginia?” Through painstaking research, Miller found that two-thirds of the state was owned by large, absentee land-holding companies.

Miller found that two dozen out-of-state corporations and land companies, all with ties to mineral industries, own a third of West Virginia’s privately held land. In 27 West Virginia counties, absentee land-holding companies own more than half the land. An ownership study in the 1980s found the same pattern across central Appalachia. For instance, in Marin County, Kentucky, one company owned one-third of the surface area and more than half of the mineral rights. There’s no reason to believe that this pattern has changed across central Appalachia.

These corporations have very little connection to the region — when Miller wrote his series in 1974, only two West Virginians served on the boards of directors of the 10 companies that held title to half of the state’s land. Sweetheart deals with counties combined with rigged state systems for mineral reserve valuation guaranteed low assessments — and minuscule taxes — on the land.

The concentration of ownership has not been good for the citizens of central Appalachia, or its political system. As historian John Alexander Williams said, the state’s leaders “were content with their roles and their profits as middlemen for the absentee owners of the state’s natural wealth.”

Academics who have studied the issue have found that regions with large tracts of corporate holdings tend to have high unemployment and low standards of living. Natural resource wealth is bled from Appalachia with little gain returned to its citizens. Central Appalachia is essentially a corporate colony.

Many of the issues plaguing the region today can be traced back to this factor.

Low tax revenue from the huge tracts of unimproved land lead to poor government services, including inadequate education and the lack of public water and sewage systems. Economic development is hindered because companies interested only in exploiting mineral or timber resources lock up huge tracts of land. Because unimproved land is taxed at a fraction of the cost of developed land, it’s actually in these companies’ interests not to develop the land and simply wait for the resources to be extracted.

We worked with a client a few years back in Logan County. A coal company wanted to put in a mine face on his property. He agreed, and all he wanted was for the coal company to find him an equivalent acre of land elsewhere in the county. That turned out to be so difficult that the coal company had to pay $350,000 for a single acre. That’s closer to what land should cost in downtown Chicago or Boston, not rural Appalachia.

Affordable housing is also difficult to come by because so little land is left in citizens’ hands.

How this came to be is a long, complicated story with roots tracing back to pre-revolutionary days when the colony of Virginia offered land to those who explored its western reaches. After the Revolutionary War, western land was offered as pensions to war veterans. Speculators purchased these grants from veterans to compile large holdings. There were overlapping claims and confusion, especially as pre-Civil War settlers made their own claims.

Absentee owners had more political power and legal acumen than the farmers and other settlers and were better able to defend their claims. The land companies used other methods, as well, to amass large holdings. Many Appalachian residents have stories of grandparents in remote hollows who were persuaded by land agents to sign over mineral rights for a fraction of their worth.

Absentee ownership is a primary reason that central Appalachia, despite its abundant mineral wealth, remains one of the poorest regions in the nation.

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Two victories in the fight against mountaintop removal

Posted on by Dan Radmacher

Two days; two excellent decisions from federal appeals courts.

Last Monday, the 6th U.S. Circuit Court of Appeals ruled in our favor in a case against the U.S Army Corps of Engineers  and its issuance of streamlined national permits for mountaintop removal operations. The court said the Corps failed to follow Clean Water Act and National Environmental Policy Act requirements prior to issuing such permits.

The next day, the U.S. Court of Appeals for the District of Columbia ruled that “whenever” actually means “whenever,” finding that the U.S. Environmental Protection Agency has full authority to revoke a valley fill permit from the Corps even after the permit has been issued, as it did when it vetoed the permit issued for Arch Coal’s Spruce No. 1 mine.

The 6th Circuit appeal, which we worked on with our long-time partner Jim Hecker of Public Justice, dealt with whether the Corps adequately considered impacts of past permits when undertaking the required “hard look” at the potential cumulative environmental impact of projects it approved under its streamlined Nationwide 21 permit, and the Corps’ failure to explain how mitigation proposed under those projects would lead to minimal cumulative impacts.

The 6th Circuit panel found that the Corps used past impacts as a predictor of future impacts, rather than assessing the cumulative environmental effects. That, the court said, violated NEPA’s requirement for the agency to “adequately consider and disclose the environmental impacts of its actions.”

The court said it was also troubled by the Corps’ fact-free response to the charge in the lawsuit that it failed to provide analysis or documentation for its determination that compensatory mitigation will help reduce the cumulative impact of the valley fills it approved under NPW 21. The court said of the Corps’ response: “Absent from this discussion is any mention of the Corps’ factual underpinnings for this determination.”

The court concluded that in order to follow applicable federal regulations, the Corps needed to document “its assessments of environmental impacts and examining past impacts respectively. Failing these regulatory prerequisites, the Corps leaves us with nothing more than its say-so that it meets CQA and NEPA standards. We may not supply a reasoned basis for the agency’s action that the agency itself has not given.”

The arguments in this case are very similar to a pending appeal before the 4th U.S. Circuit Court of Appeals in the Heyland Reylas case, though that case deals with an individual permit rather than a general one. It will be interesting to see if the same reasoning prevails.

Appalmad has a special interest in the Spruce case. Our attorneys have been fighting this 2,300-acre mine since 1998. In 2009, EPA warned the Corps that the permit would lead to irreparable environmental damage and threatened the health of local residents. When the Corps refused to take action, EPA finally vetoed the permit in 2011. Mingo-Logan Coal, the Arch subsidiary that owns the mine, sued.

Last year, a district judge sided with the coal company, in a widely criticized ruling that turned on whether the word “whenever” has any actual meaning. The district judge accused the EPA of engaging in “magical thinking” to conjure up the power to veto a  permit after it had been issued.

The appeals court, however, had no problem finding the authority clearly and unambiguously spelled out by the law:

Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’s specification but instead expressly empowers him to prohibit, restrict or withdraw the specification “whenever” he makes a determination that the statutory “unacceptable adverse effect” will result. 33 U.S.C. § 1344(c) (emphasis added). Using the expansive conjunction “whenever,” the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.

See 20 Oxford English Dictionary 210 (2d ed.1989) (defining “whenever,” used in “a qualifying (conditional) clause,” as: “At whatever time, no matter when.”). Thus, the unambiguous language of subsection 404(c) manifests the Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.3 This construction is further buttressed by subsection 404(c)’s authorization of a “withdrawal” which, as EPA notes, is “a term of retrospective application.”

This important ruling underscores the fact that, even though the Corps has permitting authority for valley fills under Section 404 of the Clean Water Act, the EPA retains an incredibly strong role in ensuring those permits are properly issued and actually protect the waters of the United States.

Posted in Coal, Mountaintop Removal, Our Cases, Partners, Water Quality | 2 Comments »

SB 562 exemplifies the problem with regulation in West Virginia

Posted on by Dan Radmacher

By Dan Radmacher

Why are West Virginia’s streams so polluted that less than a quarter of them can support their designated uses — such as recreation, providing drinking water, or supporting aquatic life?

The example of the passage and implementation of Senate Bill 562 is very telling. It’s yet another case of state regulators and lawmakers capitulating to a polluting industry rather than enforcing laws to protect the environment.

In recent years, it’s become very clear that waters downstream from the valley fills associated with mountaintop removal mining are at greater risk for biological impairment, violating West Virginia’s water quality standards.

depcommentDEP did nothing about this, ignoring guidance from the U.S. Environmental Protection Agency. Finally, Appalachian Mountain Advocates sued CONSOL, and won an important settlement in which the company agreed to try to restore the biological integrity of Broadtree Branch, which flows into 20 Mile Creek.

The coal industry realized that this issue could end up being very expensive, so it responded in typical fashion. It didn’t seek ways to mine more responsibly and cause less damage. Instead, it sued to block EPA’s guidance and it convinced a compliant state legislature to pass SB 562, an attempt to weaken those narrative standards by redefining them.

DEP also responded in typical fashion. Every time a water quality standard becomes meaningful, i.e. painful to industry, the agency capitulates and weakens it. SB 562 required DEP’s secretary to rewrite the rules for determining when streams were considered biologically impaired under the narrative standards.

At about the same time, DEP was compiling its biennial list of impaired streams as required by the federal Clean Water Act. Identifying impaired streams is the first step toward taking action to improve water quality. Impaired streams may be subject to Total Maximum Daily Loads that could strictly limit mining permits in order to protect aquatic life.

So DEP decided not to list any new biologically impaired streams — though at least 173 new streams should have been listed under the regulations currently in place.

DEP is taking this approach despite the fact that the new water quality standard hasn’t been reviewed or approved by EPA as required — indeed, even though the regulations implementing the new standard haven’t been drafted.

SB 562 specifically states that the new standards shouldn’t be less protective than existing ones, but already it is resulting in less protection for the state’s waters. DEP’s actions will delay protection of impaired streams through the TMDL process for years.

What does this episode illuminate? Simply this: Both the legislative and executive branches of West Virginia government are bending over backwards to protect the coal industry from taking responsibility for the pollution it produces and the damage it causes. Right now, this is saving the coal industry hundreds of millions of dollars.

Understand this: If the industry successfully evades this responsibility, the taxpayers of West Virginia will be left shouldering the enormous cost of cleaning up the mess.

We recently put up a map showing all of the impaired streams in the state in red. The state was blanketed in red, especially the coal fields.

With this attitude on the part of public officials, is it any wonder why?

Radmacher is communications director for Appalachian Mountain Advocates. This is a version of a commentary that originally appeared in The Charleston Gazette.




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West Virginia’s streams are in trouble

Posted on by Dan Radmacher

More than 40 percent of West Virginia’s rivers are too polluted to pass simple water-quality safety thresholds. They are too polluted to be safely used for drinking water or recreation, or to support healthy aquatic life.

This is due in large part to pollution from decades of mining. From ongoing pollution from active mountaintop removal mines and toxic discharges from poorly reclaimed mines, the quality streams of West Virginia has never been more degraded.

According to the 2012 Draft West Virginia Integrated Water Quality Monitoring and Assessment Report by the West Virginia Department of Environmental Protection, less than a quarter of West Virginia streams fully support all or some of their assessed uses.

The state has failed to collect sufficient data to determine the health of 36 percent of the streams in the state.

In many ways, Appalachian Mountain Advocates has had to take over the job of weak West Virginia state agencies like DEP that have failed to protect the environment. In addition to our legal challenges, we’ve been compiling and mapping West Virginia water quality data over the last several years. The results are  a very graphic illustration of just what mining has done to West Virginia’s streams.


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Boom! Boom! in Lewisburg

Posted on by Dan Radmacher

On November 17, about 70 Appalmad supporters gathered in Lewisburg for an afternoon of music, poetry and fellowship. The Boom! Boom! Fundraiser featured poet Crystal Good and the music of the Black Twig Pickers.

It was a tremendous success, and we’d like to thank everyone who was involved, especially Suzanne Thorniley and her host committee, who came up with the idea for the fundraiser and did the planning that made it possible; the Law Office of Roger D. Forman, which helped offset some of the expenses of the fundraiser; and Ted and Calvert Armbrecht, who provided wine and beer from The Wine Shop.

The event was fortuitously timed for a celebration, coming just days after we announced that Patriot Coal had agreed to get out of mountaintop removal mining. If you couldn’t make it, but would like to support our work, you can send a tax-deducitble donation to us at Appalachian Mountain Advocates, PO Box 507, Lewisburg, WV 24901, or just click on the Donate Now button in the upper right-hand corner to make a secure, online donation.

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