The Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and Sierra Club have filed five (5) lawsuits in the last two months in the U.S. District Court for the Southern District of West Virginia, alleging that owners of former coal mine sites are violating the Clean Water Act, 33 U.S.C. § 1251 et seq . (“CWA”) by “discharging” pollutants from unpermitted point sources. In each case, the plaintiffs concede that the property owners were not actively involved in conducting the coal mining operations that resulted in runoff being contaminated with selenium. However, they assert the landowners should be held responsible under the CWA because the mining companies are no longer present and the permits that authorized those operations have been released.

The groups filed their first two suits on May 23, 2013, against Pocahontas Land Corporation and Gary D. Baldwin, the Trustee of the David L. Francis Testamentary Trust. The complaints allege that selenium is being discharged into nearby waterways from valley fills located at closed mines in Mingo County, West Virginia owned by those defendants. A similar suit was filed against Shepard Boone Coal Company (a land holding company) on May 28, 2013, alleging unpermitted discharges of selenium from a valley fill located on a former mine site in Boone County, West Virginia. On June 19, 2013, the groups filed their most recent complaints against Hernshaw Partners, LLC. and Pocahontas Land Corporation, alleging similar discharges from valley fills located in Mingo County, West Virginia.

In all five lawsuits, the environmental groups claim that selenium is being discharged from valley fills that were constructed as a part of previous coal mining operations. According to the plaintiffs, the discharges were once permitted by the West Virginia Department of Environmental Protection (“WVDEP”) pursuant to the WVDEP’s authority under the West Virginia Water Pollution Control Act, W.Va. Code §22-11-1, et seq., through which the WVDEP administers Section 402 of the CWA, 33 U.S.C. § 1342 (creating the National Pollution Discharge Elimination System (“NPDES”) permitting system). However, the mining and WV/NPDES permits for those operations (held by the respective mining companies) were released by the WVDEP when mining ceased at the sites.

Although such permits are normally not released until all pollutant levels are within permissible limits, in some of the cases the plaintiff groups allege that they obtained water samples from the receiving streams that show levels of selenium in excess of the WVDEP’s aquatic life water quality standards. In others, they allege that simply the presence of selenium in the “point source” discharges that remain on the site (regardless of concentration) requires a WV/NPDES permit. In all of the cases the plaintiffs thus allege that because the valley fills continue to discharge selenium, this constitutes a violation of Section 301 of the CWA, 33 U.S.C. § 1311, as they are no longer permitted by the WVDEP. As a consequence, the groups ask the court to declare the continuing discharges to be unpermitted discharges in violation of the CWA, to enjoin further discharges without appropriate treatment, and to order the property owners to pay civil penalties of up to $37,500 per day for each day of past and continuing violation.

Future Implications

The Sierra Club has indicated that this type of litigation is part of a new legal strategy that it will pursue against corporate landowners of former coal mine sites to ensure that water quality protection continues. See Andrea Vittorio, Environmental Groups Again Seek Cleanup Responsibility for Selenium at Former Mines (June 21, 2013) available at Bloomburg BNA Daily Environmental Report. One could fairly surmise that another purpose is to dissuade other property owners from allowing their land to be used for mining operations in the first place. In either case, it appears that more suits of this type can be expected from such groups in the coming months. How the court rules on key legal challenges that are likely to be made in the form of early dispositive motions will have a significant bearing on the success of their strategy.

Treatment of selenium can be very costly, even when undertaken pursuant to settlement agreements by cooperating coal companies. For example, as of May 31, 2013, Patriot Coal Corporation reported that it has expended over $46 million on selenium treatment as part of a Consent Decree entered with the Ohio Valley Environmental Coalition in a lawsuit related to operation of coal mine by its subsidiary, Apogee Coal Company. See Thirty-Second Monthly Status Report, Ohio Valley Envtl. Coalition, Inc. v. Apogee Coal Co., LLC., No. 3:07-0413 (S.D. WV June 10, 2013) (Doc. 311). Though that case involves numerous point source discharges, selenium is notoriously hard to treat, especially down to the unnecessarily stringent levels required by the WVDEP’s current water quality standards. That is part of the reason for passage of House Bill 562 during the most recent West Virginia Legislative Session, which will allow the WVDEP to conduct studies to arrive at appropriate site-specific selenium standards for West Virginia streams and dischargers.