Alpha loses parts of court decision on selenium runoff from mine sites

Alpha Natural Resources (NYSE: ANR) subsidiaries in some respects lost a March 31 decision out of the U.S. District Court for the Southern District of West Virginia related to toxic selenium runoff from coal mine sites.

Judge Robert Chambers was ruling in a 2012 case bought by environmental groups, including the Ohio Valley Environmental Coalition, against units of Alpha, including Alex Energy and Independence Coal.

The plaintiffs allege that the companies violated statutes by discharging excessive amounts of selenium into the waters of West Virginia. This case implicates nine WV/NPDES permits. Each permit is held by one of the seven defendants. Only some of the outfalls covered by these permits were the subject of the pending motions for partial summary judgment.

Pending before the court were seven motions for partial summary judgment: plaintiffs’ motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Jacks Branch Coal; plaintiffs’ motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Bandmill Coal; defendants’ motion for partial summary judgment; Bandmill’s motion for partial summary judgment; plaintiffs’ motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Aracoma Coal, Highland Mining, Independence Coal and Kanawha Energy; Highland’s motion for partial summary judgment; and Jacks Branch’s motion for partial summary judgment.

Also pending was Plaintiffs’ Rule 37(c) motion to strike Exhibit 1 of Highland’s reply brief in support of its motion for partial summary judgment and Jacks Branch’s motion for a partial stay pending entry of a consent decree.

The judge on March 31 ruled as follows:

  • He found that the holders of permits which do not have selenium limits or monitoring and reporting requirements on their face must comply with West Virginia water quality standards, consistent with this Court’s findings in prior cases.
  • The court found that the West Virginia Department of Environmental Protection (WVDEP) is not authorized to indefinitely suspend the requirement that permit holders comply with water quality standards. Therefore, the holders of permits which impose monitoring and reporting requirements for selenium but do not include future selenium limits explicitly on the face of the permits must comply with water quality standards.
  • The court found that the WVDEP is authorized to temporarily suspend the requirement that permit holders comply with water quality standards. Therefore, the holders of permits which impose present monitoring and reporting requirements for selenium and selenium limits that go into effect at a later date are not required to comply with water quality standards in the interim period between issuance of their permits and the effective date of the selenium limits.
  • The court accordingly granted in part and denied in part defendants’ motion for partial summary judgment, consistent with the above findings.
  • The court found that Bandmill’s discharges are covered by its WV/NPDES Permit WV1015559 but also found that Bandmill is liable for selenium violations at Outfall 001 of that permit. In accordance with these findings, the court granted in part and denied in part plaintiffs’ motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Bandmill. Specifically, the court granted the motion as to liability regarding Outfall 001 of this permit but denied as premature plaintiffs’ claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The court denied plaintiffs’ motion to the extent it asks this court to find that Bandmill’s discharges were made without a permit. The court also granted in part and denied in part Bandmill’s motion for partial summary judgment.
  • The court granted in part and denied in part plaintiffs’ motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Aracoma, Highland, Independence, and Kanawha Energy. Specifically, the court granted the motion as to liability regarding: Outfalls 001 and 002 of Aracoma’s WV/NPDES Permit WV1010689; Outfall 004 of Independence’s WV/NPDES Permit 1016890; and Outfall 007 of Kanawha Energy WV/NPDES Permit WV1015176. However, Plaintiffs’ motion was denied regarding Outfalls 001 and 019 of Highland’s WV/NPDES Permit WV1016938. The court denied as premature plaintiffs’ claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The court denied Highland’s motion for partial summary judgment and denied as moot plaintiffs’ Rule 37(c) motion to strike Exhibit 1 of Highland’s reply brief in support of its motion for partial summary judgment.
  • The court granted in part and denied in part plaintiffs’ motion for partial summary judgment and for declaratory and injunctive relief and civil penalties against Jacks Branch. Specifically, the court granted the motion as to liability regarding Outfalls 004, 014, and 015 of Jacks Branch’s WV/NPDES Permit WV0093929 and Outfalls 002, 009, 011, and 014 of Jacks Branch’s WV/NPDES Permit WV1012452. The court denied as premature plaintiffs’ claims regarding the number of violations and for injunctive relief, declaratory relief, and civil penalties. The court granted Jacks Branch’s motion for partial summary judgment as to Outfall 015 of Jacks Branch’s WV/NPDES Permit WV1012452. Also, the court held in abeyance Jacks Branch’s motion for a partial stay pending entry of a consent decree.
  • The court directed the parties to file a report regarding the status of the remaining claims, plans for disposition of those claims, and plans for phase II of this litigation within 21 days of the entry of the March 31 Memorandum Opinion and Order.
About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.