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There was a win this week in the fight to stop the insane practice of mountaintop removal (MTR) mining in the coalfields of West Virginia, Kentucky, and Virginia.

Before getting into the details of the good news, a little context is in order. It is no secret that MTR mining in Appalachia has laid waste to 1.5 million acres of old growth forest and dumped toxic debris in nearly 2000 miles of streams. Companies engaged in MTR mining frequently violate toxic discharge limits in permits, but state regulators are a joke. No one in their right mind thinks the coal industry will ever clean up this mess. When the profit is gone, the taxpayers will be left holding the bag. Of course.

Alpha Natural Resources, one of the biggest coal energy companies in the country, operates a slew of MTR mines in West Virginia. A coalition of environmental organizations (Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and the Sierra Club) filed suit in U.S. district court against two Alpha MTR mining sites. The West Virginia Department of Environmental Protection ignored evidence of violations and refused to act. Here is the gist of the complaint.

Plaintiffs allege that Defendants Elk Run Coal Company, Inc., (―Elk Run) and Alex Energy, Inc., (―Alex Energy) violated these statutes by discharging excessive amounts of ionic pollution, measured as conductivity and sulfates, into the waters of West Virginia in violation of their National Pollutant Discharge Elimination System (―NPDES) permits and their West Virginia Surface Mining Permits.
On June 4, U.S. District Judge Robert C. Chambers ruled against the coal giant. The news attracted little attention in media coverage dedicated to the "war on coal."

Here is Judge Chambers' conclusion (pages 65-66):

In multiple ways, the chemical and the biological components of the aquatic ecosystems found in Laurel Creek and Robinson Fork have been significantly adversely affected by Defendants‘ discharges. The water chemistry of these streams has been dramatically altered, containing levels of ionic salts—measured as conductivity—, which are scientifically proven to be seriously detrimental to aquatic life. The biological characteristics of these streams have also been significantly injured, in that species diversity—and, in some areas, overall aquatic life abundance—is profoundly reduced. These receiving streams are unquestionably biologically impaired, in violation of West Virginia‘s narrative water quality standards, with current WVSCI scores falling well below the threshold score of 68.

Losing diversity in aquatic life, as sensitive species are extirpated and only pollution-tolerant species survive, is akin to the canary in a coal mine. These West Virginia streams, like the reference streams used to formulate WVSCI and even like those used by Defendants‘ expert for comparison in this trial, were once thriving aquatic ecosystems. As key ingredients to West Virginia‘s once abundant clean water, the upper reaches of West Virginia‘s complex network of flowing streams provide critical attributes—―functions in ecological science—that support the downstream water quality relied upon by West Virginians for drinking water, fishing and recreation, and important economic uses. Protecting these uses is the overriding purpose of West Virginia‘s water quality standards and the goal of the state‘s permit requirements.

The Court thus FINDS that Plaintiffs have established, by a preponderance of the evidence, that each Defendant has committed at least one violation of its permits by discharging into Laurel Creek or Robinson Fork high levels of ionic pollution, which have caused or materially contributed to a significant adverse impact to the chemical and biological components of the applicable stream‘s aquatic ecosystem, in violation of the narrative water quality standards that are incorporated into those permits. The Court also FINDS that Plaintiffs have established statutory jurisdiction under both the CWA and the SMCRA.

Alpha Natural Resources has said it will appeal the ruling and continue its destructive practices as long metallurgic coal commodity prices remain high. They released the following statement:
The decision here flies in the face of determinations made by all three branches of West Virginia state government-a resolution passed by the state legislature, Department of Environmental Protection policy, and a May 30 Supreme Court decision-all of which point to the fact that conductivity by itself has not been proven to cause loss of sensitive mayflies, and that further evidence is needed beyond a set of bad bug scores to prove violation of state water quality standards. The state Supreme Court spells it out clearly, ruling that there is not adequate agreement in the scientific community that conductivity causes harm to aquatic life. We fully intend to appeal this ruling and expect to see it reversed.
The statement is instructive. With regulatory capture of all three branches of West Virginia state government by the coal industry, Alpha was expecting to ignore their permit requirements as merely suggested guidelines rather than anything remotely enforceable.

Randy Huffman, the head of the W.V. Department of Environmental Protection, gnashed his teeth, stamped his feet, and whirled like a dervish. From the West Virginia Gazette:

Basically what happened is Judge Chambers set a water quality standard, which is concerning. There is a process for setting water quality standards, and I think the role of the courts is to see if that process took place. I’m not even arguing the science right now. This is really about the process.
It is all about process. The process is that the coal companies do whatever they want and Huffman's agency looks the other way. The advantage of narrative over numeric standards is that everything is a judgment call, all in the eye of the beholder. By the way, Randy, please argue the science. I could use a laugh.

Kudos to Judge Chambers for still believing the law applies to coal companies. That almost never happens, especially in the hollers of Appalachia. I especially liked his use of the past tense when it comes to water quality in West Virginia (i.e., "once thriving aquatic ecosystems," "once abundant clean water"). Sad but true.

Originally posted to DWG on Wed Jun 11, 2014 at 05:36 PM PDT.

Also republished by Good News.

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Comment Preferences

  •  Speaking of toxic coal waste (13+ / 0-)

    Murray Energy, the same company that required coal miners serve as props for a Romney campaign stop, is threatening to go to court to fight the new EPA power plant carbon emission standards.

    While not committing to filing a lawsuit to challenge the rule, Murray spokesman Gary Broadbent said Wednesday that the rules, along with other climate change rules from the Obama administration, are illegal.

    “The Obama administration’s proposed cap-and-tax mandates are absolutely illegal and will destroy millions of jobs, cripple the American economy, and cause massive blackouts in this country,” Broadbent said.

    Yes, the sky will certainly fall if coal industry profits suffer to protect quality of life on this planet.

    This is priceless.

    In an interview with West Virginia Executive magazine last month, Murray Chief Executive Officer Bob Murray said climate change is a lie and the EPA has no authority to regulate greenhouse gases.

    “They are not telling hardly any truth about the science,” he said. “The earth has actually cooled over the last 17 years, so under the Data Quality Act, they’ve actually been lying about so-called global warming.”

    What a fucked up country we live in.

    Be radical in your compassion.

    by DWG on Wed Jun 11, 2014 at 05:47:08 PM PDT

    •  Well, it's not the earth, whose core is actually (0+ / 0-)

      a molten mass, that's warming. It is the atmosphere, the shell of gasses we need to breathe that's being polluted by pumping carbon particles from the crust into it. That each carbon particle is accompanied by two oxygen particles probably doesn't help. Humans require oxygen to live and carbon is not good for lungs. It's why we exhale it with each breath.
      What we call things does make a difference. That's why Adam's first endeavor was to name the things in his environment.

      http://hannah.smith-family.com

      by hannah on Thu Jun 12, 2014 at 04:28:17 AM PDT

      [ Parent ]

  •  Long time no see. I hope it won't be so... (7+ / 0-)

    ...long next time. Especially if you're bringing us good news, as in this case.

    Don't tell me what you believe, show me what you do and I will tell you what you believe.

    by Meteor Blades on Wed Jun 11, 2014 at 06:54:52 PM PDT

  •  One quibble (2+ / 0-)
    Recommended by:
    LinSea, DWG

    It's almost impossible that MTR removed "1.5 million acres of old growth forest."  The best estimate that I could find for the entire eastern US was around 1.3 million acres--and that was several years ago.  I can't imagine that there were 1.5 million acres of old growth in the central Appalachians alone.

    Maybe you meant mature forest, which is not the same thing as old growth.

    The next Noah will work a short shift. - Charles Bowden

    by Scott in NAZ on Wed Jun 11, 2014 at 07:12:57 PM PDT

  •  Apparently the head of WV's environmental prote... (4+ / 0-)
    Recommended by:
    mommyof3, LinSea, James Wells, snoopydawg

    Apparently the head of WV's environmental protection branch is completely unaware that NPDES discharge limits are supposed to protect ecological receptors in the discharge stream. That suggests that he is in the wrong job.

    If the state of WV is unwilling to enforce rules promulgated under the Clean Water Act, their authority to do so should be rescinded by the USEPA.

    •  look in to his bank account. (0+ / 0-)

      And everone else's who have looked the other way.
      That was one of my thoughts in the diary "I want my country back".
      I want the people who are responsible to make sure the coporations follow the laws, to do their damned jobs.
      Remember Maddow's show a few years back when she reported an angency was caught snorting crack off od people's asses?  

      "Americans don't understand that terrorists cannot take away habeas corpus, the Bill of Rights, or the Constitution. Terrorists are not anything like the threat that we face from our own government in the name of fighting terrorism."

      by snoopydawg on Wed Jun 11, 2014 at 09:27:35 PM PDT

      [ Parent ]

    •  Some of our agents of government are under the (0+ / 0-)

      impression that they govern and that the issuance of permits to individuals and groups that ask nicely is evidence of their empowerment. They do not see themselves as public servants. On the other hand, some that see themselves as servants compensate themselves for their subordinate status by "lording" it over their clients. Hierarchy is more important to them than outcome.
      Partially, we the people are at fault because we do not reward good service enough and only pay attention when things go horribly wrong.

      http://hannah.smith-family.com

      by hannah on Thu Jun 12, 2014 at 04:36:41 AM PDT

      [ Parent ]

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