A federal judge on July 22 denied a summary judgment motion from the Alex Energy unit of coal producer Alpha Natural Resources (NYSE: ANR), allowing a July 2013 Clean Water Act lawsuit to move forward.
The ruling came from Robert Chambers, a judge in the U.S. District Court for the Southern District of West Virginia that has heard a lot of Clean Water Act lawsuits in recent years filed by environmental groups against mining companies. This particular lawsuit was filed by groups that include the Ohio Valley Environmental Coalition. Chambers in his July 22 ruling found that Alex Energy is liable under all three counts of plaintiffs’ complaint.
According to the complaint, defendant Alex Energy holds WV/NPDES Permit WV1021907, which regulates certain mining activities, including operation of the PGM Surface Mine No. 1 in Nicholas County, W.Va. The same WV/NPDES Permit also regulates Outfall 029, which is part of Alex Energy’s Hardway Branch Surface Mine.
WV/NPDES Permit WV1021907 does not explicitly, on its face, impose selenium limits, but it does incorporate by reference West Virginia Code of State Rules which states in part that “discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].”
Plaintiffs allege that Alex Energy’s discharges from Outfall 029 contain excessive amounts of selenium and therefore violate the CWA and the 1977 federal surface mining act. Specifically, Count One alleges violation of the CWA, Count Two alleges violation of the surface mining law’s performance standards regarding water quality, and Count Three alleges violation of the surface mining acts requirement that adequate treatment facilities be installed.
The judge noted that Alex Energy’s own water quality samples from earlier this year showed violations at the site.
The judge on July 22 cancelled the pretrial conference scheduled for July 28 and told the parties to meet and file a Rule 26(f) Report as to the nature of relief or remedies for the remaining phase of this matter by Aug. 12.