Groups Take Action to Protect Waterways in Multiple Coal Mining Pollution Cases

Today, the Sierra Club, West Virginia Highlands Conservancy and Ohio Valley Environmental Coalition filed a series of actions to protect West Virginia waterways from mountaintop removal mining based water pollution. The first two actions allege that mine runoff from mines operated by Alex Energy, Inc. (Alex) and Fola Coal Company, LLC (Fola) has contaminated the water in two tributaries of Twentymile Creek--Spruce Run and Stillhouse Branch respectively - with sulfate and other dissolved solids that are harmful to aquatic life. The third action alleges that Consol of Kentucky's Peg Fork mountaintop removal mine violates Clean Water Act protections against selenium. The Alex, Fola and Consol lawsuits will be filed in the United States District Court for the Southern District of West Virginia.

The claims against Alex and Fola are based on the same legal theory that the two groups used to obtain a 2012 settlement against Fola, requiring it to cleanup another biologically-impaired tributary--Boardtree Branch--in the Twentymile Creek watershed. In both cases, the groups contend that the mining companies have violated West Virginia's "narrative" water quality standards, which set general criteria for water quality, rather than "numeric" water quality standards, which set limits on the concentration of specific pollutants in water.

"Amazingly, at the same time that data show more and more streams impaired by coal mining, WVDEP is seeking to reduce the number of streams on the state's impaired streams list," said Jim Sconyers, Chapter Chair of the West Virginia Sierra Club. "Rather than forcing the mining companies to clean up the impaired streams, WVDEP is trying to redefine the meaning of impairment administratively so that it no longer exists while the EPA is taking a "cross your fingers and hope" approach to mining pollution. So groups like ours have to do WVDEP's job. We can't allow these companies to keep poisoning our streams."

Selenium, the pollutant at question in the Consol case, is a toxic element that causes reproductive failure and deformities in fish and other forms of aquatic life, and is discharged from many surface coal mining operations across Appalachia. Selenium accumulates in the tissues of aquatic organisms over time, and experts predict that waterways across Appalachia could be on the brink of collapse due to increasing levels of the pollutant.

"If mining in these areas is to continue it must be done in a manner that doesn't further degrade the water in these streams" said Cindy Rank of the West Virginia Highlands Conservancy. "It is important for people who live by and enjoy these streams and for the future of the state of West Virginia that greater care must be afforded to the waters we leave for our children and our children's children."

"It's really sad that so many waterways are being polluted by illegal levels of mining pollution," said Dianne Bady of Ohio Valley Environmental Coalition. "We hope that citizen suits like ours will put more pressure on government agencies and coal companies to stop the widespread degradation of West Virginia streams."

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. In fact, the EPA let the valley fill at Consol's Peg Fork mine happen with the understanding that if safeguards were not met, they would tackle the issue at that point. Thankfully, Congress authorized citizen suits under the Clean Water Act to enforce the law directly against permit violators like Alex, Fola & Consol.

Counsel in the Alex & Fola cases is Jim Hecker at Public Justice in Washington, DC and Joe Lovett and Derek Teaney of Appalachian Mountain Advocates in Lewisburg, WV. Mr. Lovett and Mr. Teaney also represent the Sierra Club, WVHC and OVEC in the Consol case.