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Landmark Settlement Means Coal Mines Have New Obligations to Restore Impaired Streams

Landmark Settlement Means Coal Mines Have New Obligations to Restore Impaired Streams

A degraded watershed in central Appalachia. 

First-of-its-kind agreement forces cleanup of conductivity pollution in West Virginia

A coalition of environmental groups represented by Public Justice and Appalachian Mountain Advocates has reached a settlement with two Appalachian coal mining companies that breaks new ground by requiring them to reduce discharges of dissolved salts that have impaired downstream waters. These dissolved salts have caused a 10- to 20-fold increase in the electrical conductivity of the water, which in turn has reduced the abundance and diversity of aquatic life in the streams so much that they are listed as biologically impaired under the federal Clean Water Act.

The settlement, still subject to court approval, requires two subsidiaries of Alpha Natural Resources to install state-of-the-art technology to reduce the conductivity in two West Virginia streams to 300 microsiemens per centimeter—the level that the U.S. Environmental Protection Agency deems safe for aquatic life. Alternatively, the companies must demonstrate that the abundance and diversity of aquatic life in the streams is equivalent to that found in unimpaired reference streams.  

This is the first settlement that requires a coal mining company to comply with these two strict standards.

“High conductivity and selenium in downstream waters are two of the most harmful effects of mountaintop coal mines, and high conductivity is even more prevalent than high selenium,” said Jim Hecker, Public Justice’s Environmental Enforcement Director. “This case established the first legal precedent for controlling conductivity in Appalachia, and this settlement requires stringent controls to restore two streams severely impaired by high conductivity.”

Hecker and Public Justice, together with Joe Lovett and Michael Becher at Appalachian Mountain Advocates, have pioneered the practice of bringing citizen suits to hold mining companies liable under the Clean Water Act for conductivity and selenium pollution, and this settlement is the most recent in a series of court victories in these suits. In June 2014, a U.S District Judge in West Virginia ruled that Alpha was liable for causing biological impairment of two streams downstream from four of its West Virginia mines, based on multiple measurements of high conductivity and reduced stream health. That ruling was to be followed by a trial on remedies, which led to this week’s settlement compelling Alpha to remove conductivity from the water.

EPA research shows that most of the streams downstream from mines with valley fills are biologically impaired. EPA issued a peer-reviewed report in 2011 which determined that this impairment is caused by the chemical mixture that leaches out of those valley fills. Many other peer-reviewed scientific studies have confirmed EPA’s findings. Yet EPA and the states in Appalachia have failed to require companies to stop this pollution.

“EPA came out with its benchmark for the minimum levels of safe conductivity pollution years ago, and the science behind it has only gotten stronger—so why does it still fall to citizen groups to actually enforce EPA’s guidance?” said Jim Sconyers of the West Virginia Sierra Club, which along with the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy sued Alpha over its pollution in this case, OVEC v. Elk Run Coal Company. “State and federal regulators are asleep at the wheel while our streams are devastated and our communities suffer.”

This settlement is subject to a 45-day comment period by the Department of Justice, after which it will become final, and the cleanup process must begin.