West Virginia Highlands Conservancy v. Elk Run Coal Company
The Sierra Club and West Virginia Highlands Conservancy are suing two mining companies for discharging pollutants that have biologically impaired streams in West Virginia. The groups are represented by Public Justice and Appalachian Mountain Advocates.
The lawsuit, filed March 2012 in federal court in Charleston, W.Va., alleges that mine runoff from five mines operated by Elk Run Coal Company and Alex Energy has contaminated the water in the Laurel Creek and Twentymile Creek watersheds with sulfate and other dissolved solids that make them toxic to aquatic life.
The suit is based on the same legal theory that the two groups used to obtain a 2011 settlement against Fola Coal Company:
That settlement required Fola to cleanup another biologically-impaired tributary 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.
Compliance with narrative standards is typically determined by taking field measurements of the abundance and diversity of aquatic life in the stream, rather than by only measuring the amount of chemicals in the discharged water. Some tributaries of the Laurel and Twentymile Creeks show significant damage to aquatic life compared to that in unpolluted reference streams. A large portion of the land area in these two watersheds has been disturbed by mining and valley fills.
The EPA has estimated that nine out of ten 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. Congress authorized citizen suits under the Clean Water Act to enforce the law directly against permit violators like Elk Run and Alex Energy.
Counsel in the case are Public Justice’s Jim Hecker and Appalachian Mountain Advocates’ Joe Lovett and Derek Teaney of Lewisburg, W.Va.