Red River Coal argues in federal court over Virginia coal mine permits

Virginia coal producer Red River Coal and environmental groups are arguing back and forth in federal court over whether June 2014 lawsuit brought by the environmental groups should be dismissed in summary judgment.

The case is being argued in the U.S. District Court for the Western District of Virginia. In a March 6 motion for summary judgment, Red River Coal said that plaintiffs Southern Appalachian Mountain Stewards, Sierra Club and Appalachian Voices have brought a citizen suit under the Clean Water Act. Plaintiffs allege that Red River, a coal mining company, violated the conditions of its National Pollutant Discharge Elimination System (NPDES) permits for four of its mines in Wise County, Va.

“Plaintiffs’ claims are based upon their interpretation of a boilerplate condition in the permits, which they assert requires direct and immediate compliance with the numeric wasteload allocations (‘WLAs’) set forth in a total maximum daily load (‘TMDL’) established by state regulatory authorities several years after the permits were issued,” said Red River.

Red River previously filed a motion to dismiss, arguing that plaintiffs’ interpretation was wrong as a matter of law, and that the court should abstain from asserting jurisdiction over the case in accordance with the abstention doctrine. The court denied the motion, “because further development of the record is necessary.” The facts established by the new company declarations, combined with the facts established in support of the motion to dismiss, show that plaintiffs’ interpretation of the permits is inconsistent with the state permitting agency’s own interpretation, which is entitled to deference, and that the court should otherwise abstain from asserting jurisdiction over the case, the company said.

In a March 30 response brief, the environmental groups said: “The pattern of compliant state agencies attempting to protect the coal industry from complying with its obligations under federal law appears to be repeating itself in this case. In its memorandum in support of its motion for summary judgement, Doc. 26, Defendant does not contest that it is discharging TDS and TSS at levels that greatly exceed the South Fork Pound River TMDL’s individual wasteload allocations (WLAs) for its permit or that its discharges are contributing to impairment of the South Fork Pound River. Rather, Defendant asks the Court to defer to a state agency’s interpretation of its permits that runs counter to the plain language of the permits, the TMDL, and federal law. The interpretation urged by Defendant and the state agency would render the individual WLAs specifically assigned to Defendant by the South Fork Pound River TMDL—as mandated by the EPA—entirely meaningless and is thus due no deference.”

The environmental groups also have a motion for summary judgment in their favor pending at the court.

U.S. Mine Safety and Health Administration data shows Red River Coal as being controlled by William Humphreys.

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.