A federal judge has dismissed a lawsuit filed by environmental groups including Black Warrior Riverkeeper that claimed that coal producer Black Warrior Minerals was violating Clean Water Act standards.
The Sept. 17 ruling out of the U.S. District Court for the Northern District of Alabama, from Judge Sharon Lovelace Blackburn, said the environmental groups filed to meet a statutory deadline to sue and so the court granted the coal company’s motion to dismiss.
Black Warrior Riverkeeper, Friends of Hurricane Creek, Nelson Brooke and John Wathen sued Black Warrior Minerals in September 2011, alleging that it violated water standards by discharging pollutants from point sources at its Fleetwood mine in Tuscaloosa County into Hurricane Creek, a tributary of the Black Warrior River, and into unnamed tributaries of Hurricane Creek.
The Alabama Department of Environmental Management (ADEM) issued the defendant a National Pollutant Discharge Elimination System (NPDES) individual permit, authorizing defendant to discharge into Hurricane Creek and an unnamed tributary to Hurricane Creek. On or about Sept. 2, 2011, plaintiffs served defendant with notice of alleged violations of New Source Performance Standards (NSPS) and defendant’s NPDES permit and of plaintiffs’ intent to sue. It filed suit 11 days after the notice was sent to the company.
Black Warrior Minerals successfully moved to dismiss plaintiffs’ claims for failure to comply with the 60-day notice requirement under U.S. code and/or their failure to allege that defendant violated its NPDES permit limitations. It also contended that plaintiffs cannot assert a claim under the CWA based on monthly averages and, therefore, to the extent plaintiffs’ claim is based on excess discharges based on monthly averages, such claim must be dismissed. The judge did note that ADEM has filed suit against Black Warrior Minerals alleging it has violated its NPDES permit for the Fleetwood mine.
The U.S. Mine Safety and Health Administration database shows Black Warrior Minerals – controlled by Roger Perry, Rance Perry and Leah Perry-Haynie – with a Fleetwood No. 1 strip mine in Tuscaloosa County that is currently counted by the agency as “active.” The mine produced 57,909 tons in the first half of this year and 115,915 tons in all of 2011, according to MSHA data.