WEST VIRGINIA RECORD

BECKLEY - Summary judgment was recently awarded in a lawsuit filed by four environmental agencies against Independence Coal Company and Marfork Coal Company in federal court.

Ohio Valley Environmental Coalition Inc.; West Virginia Highlands Conservancy Inc.; Coal River Mountain Watch; and Sierra Club were plaintiffs in the suit.

Marfolk Coal Company Inc. and Independence Coal Company Inc. were both named as defendants in the suit.

A Memorandum Opinion and Order was filed on Aug. 23 in the U.S. District Court for the Southern District of West Virginia at Beckley.

The plaintiffs in the case previously moved for partial summary judgment against Independence and Independence failed to contest any of the plaintiffs' factual assertions or legal arguments regarding liability, according to the order.

The court entered an order on April 8, granting the plaintiffs' motion for summary judgment, according to the order.

"All three claims against Independence are premised upon a violation of the effluent limitations in its WV/NPDES permit. Because there is no genuine issue as to any material fact that Independence is in violation of its permit, plaintiffs are entitled to summary judgment on all claims against Independence," the order states.

The court found that the plaintiffs have standing and that they have demonstrated continuous or intermittent violations by Independence of WV/NPDES Permit WV1029711. Additionally, the court found that there is no genuine issue of fact with respect to the issue of whether Independence violated the requirement to construct and install adequate treatment facilities.

The court granted summary judgment in favor of the plaintiffs on three counts.

Independence has held a WV/NPDES permit to regulate water pollution from its Brushy Fork Slurry Impoundment and has also held a WVSCMRA permit for the impoundment, according to a complaint filed May 9, 2012, in the U.S. District Court for the Southern District of West Virginia at Huntington.

The plaintiffs claimed Outfall 001 regulated by the WV/NPDES permit discharges into Brushy Fork of Little Marsh Fork of Marsh Fork of the Big Coal River and the waterways are all navigable waters of the United States.

Marfork operates a surface mining facility adjacent to the Brushy Fork Slurry Impoundment called the Beetree Surface Mine and the Beetree permits require Marfork to monitor surface water quality, including selenium concentrations, in Brushy Fork at a sampling point identified as DBF, according to the suit.

The plaintiffs claimed reports submitted by Marfork for the Beetree Surface Mine reveal that Marfork has discharged selenium into Brushy Fork in amounts that violate water quality standards and violate the standards of its permits.

"Because there are no other discharges into Brushy Fork between Outfall 001 regulated by WV/NPDES Permit WV1015044 and the monitoring point DBF, the only possible source of the selenium measured at DBF is Outfall 001," the complaint states.

The plaintiffs claim Marfork's discharges have caused violations of the chronic and acute selenium water quality standards on multiple occasions between Dec. 1, 2008, and Jan. 31, 2012.

Independence holds permits effective in December 2008 and limit the selenium concentration in its discharge to 4.7mg/l as a monthly average and 8.2mg/l as a daily maximum, according to the suit.

The plaintiffs claimed Independence violated the final effluent limitations on Outfall 001 at least 25 times for a total of 320 days of violation between March 1, 2010, and March 31, 2012.

The plaintiffs were seeking the court to enter an order declaring the defendants have violated and are in continuing violation of the Clean Water Act and SMCRA; enjoining Marfork from operating the Brushy Fork Slurry Impoundment in such a manner as will result in further violations; ordering Marfork to immediately comply with all terms and conditions of its permits; enjoining Independence from operating the Crescent No. 2 Surface Mine in such a manner as will result in further violations of the selenium effluent limitations in its permit; ordering Independence to immediately comply with its permit's conditions; ordering the defendants to pay appropriate civil penalties up to $37,500 per day for each Clean Water Act violation; and ordering the defendants to conduct monitoring and sampling to determine the environmental effects of their violations. They were being represented by Derek O. Teaney and Joseph M. Lovett of Appalachian Mountain Advocates.

The case is assigned to District Judge Robert C. Chambers.

U.S. District Court for the Southern District of West Virginia at Huntington case number: 5:12-cv-1464