The A&G Coal operation of coal operator Jim Justice lost a July 22 decision out of federal court related to selenium discharges in wastewater from a strip mine in Virginia.
The ruling came from Judge James Jones out of the U.S. District Court for the Western District of Virginia. This civil action arises under the Clean Water Act (CWA) and the 1977 Surface Mining Control and Reclamation Act (SMCRA). The plaintiffs, including Southern Appalachian Mountain Stewards, allege that A&G, which is admittedly discharging selenium from one of its surface mines, is violating the law because its permits do not allow it to discharge that pollutant.
A&G asserts the so-called “permit shield” as a defense, arguing that because the permitting agency chose not to include effluent limits for the discharge of selenium in the defendant’s CWA permit, compliance with the plain language of its valid permits protects it from liability for selenium discharges.
“In other words, the defendant argues that because it has a valid permit that says nothing about selenium, it can discharge selenium with impunity,” the judge wrote in his July 22 ruling. “The plaintiffs counter that because the defendant did not disclose the potential for selenium discharge in its permit application, it cannot avail itself of the permit shield.”
Both parties moved for summary judgment and the judge on July 22 granted the plaintiff summary judgment motion.
The plaintiffs contend that A&G is discharging selenium from its Kelly Branch Surface Mine without express authorization to do so, and is thus violating the CWA and SMCRA. The mine is located in Wise County, Va., and is owned and operated by A&G. The mine discharges pollutants into waterways from outfalls subject to the effluent limitations of a Virginia National Pollution Discharge Elimination System (VA/NPDES) permit. The VA/NPDES permit does not expressly authorize the discharge of selenium from the Kelly Branch mine.
When A&G applied for its VA/NPDES Permit, it disclosed to the permitting agency, the Virginia Department of Mining, Minerals, and Energy (DMME), that it expected to discharge certain pollutants from its bituminous coal mining operation. Selenium was not among the pollutants A&G disclosed in its application. According to A&G, it neither knew nor had any reason to believe that it would discharge selenium from the mine. Water samples taken by both the plaintiffs and A&G, however, reveal that the Kelly Branch mine is in fact discharging selenium from two artificial ponds, the judge noted.
“I find unpersuasive A&G’s argument that it adequately disclosed the nature of its discharges by informing the DMME that it would perform bituminous coal mining operations,” the judge wrote. “The record contains no evidence that DMME reasonably contemplated the discharge of selenium simply because it knew that the Kelly Branch Surface Mine was a bituminous coal mine. Indeed, A&G claims that it had no reason to know it would discharge selenium, despite the fact that it clearly knew it would operate a bituminous coal mine.”
The judge, in ruling for the plaintiff summary judgment motion, granted several plaintiff requests. The requests include that he require A&G to apply expeditiously to DMME for a permit modification to address selenium discharges, and to submit all the selenium test results in the record in this case along with its request for modification. The plaintiffs also wanted the judge to wait to determine any civil penalties until after the permit modification process is complete or until one of the parties moves to establish a modified schedule. The plaintiffs also asked that A&G be ordered to submit quarterly status reports to the court pending completion of the modification process, to perform daily tests for selenium from both its outfalls and the water column of the tributary streams immediately downstream from the ponds’ discharges, and to monthly submit those test results to the plaintiffs and DMME for use during the permit modification process.