Landmark Settlement Reached on Conductivity Pollution from Surface Coal Mines

Citizen and environmental groups have reached a first of its kind settlement agreement with Alpha Natural Resources that requires the company to ensure its pollution discharges from four mountaintop removal coal mines meet key clean water protections. The agreement includes enforceable conditions and timelines that the groups say will eventually require the company to install state of the art technology to treat harmful conductivity pollution.

The mines at issue are operated by Alpha subsidiaries Elk Run Coal Company in Boone County and Alex Energy in Nicholas County, WV. The groups involved, including Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and the Sierra Club – who are represented in this case by Appalachian Mountain Advocates and Public Justice, previously secured a decision from the U.S. District Court for the Southern District of West Virginia finding the company liable for violations of the Clean Water Act. Although today’s settlement agreement allows the company to attempt to meet Clean Water Act protections by improving the health of the harmed streams, it also includes firm trigger mechanisms that will require the installation and operation of pollution treatment technology to reduce conductivity pollution down to the level the Environmental Protection Agency has determined is safe for aquatic life: 300 µS/cm.

The settlement also requires Alpha to retire the only remaining dragline in Central Appalachia not already subject to a retirement agreement.

Conductivity is a measure of certain pollutants in water, based on the water’s ability to hold an electrical charge. The Environmental Protection Agency has conducted scientific studies that found “high levels of conductivity, dissolved solids, and sulfates are a primary cause of water quality impairments” downstream from valley fills and other mining operations.

In 2010 the Environmental Protection Agency reviewed state mining permits in Appalachia and found that none of them took steps to prevent pollution that increases conductivity in streams they filled with debris. Currently, experts predict that waterways across Appalachia could be on the brink of collapse due this type of pollution.

“For the company to escape treating its conductivity pollution, it would have to succeed in restoring streams despite the presence of conductivity at levels that multiple peer reviewed studies have demonstrated are devastating to aquatic ecosystems,” said Cindy Rank of West Virginia Highlands Conservancy.  “We are confident that this agreement will ultimately force the company to treat its conductivity pollution with the best available technology.”

“This is the first time a mining company will be subject to enforceable deadlines that will lead to the use of treatment technology for conductivity pollution,” said Dianne Bady of Ohio Valley Environmental Coalition. “That’s a great first step, but unfortunately we know that mines across Appalachia are releasing harmful pollution every day, and state regulators continue to authorize similar operations.”

Today’s settlement follows closely on the heels of last week’s announcement by the citizen groups that they are preparing a new lawsuit against Patriot Coal subsidiary Hobet Mining regarding conductivity pollution into the Mud River watershed from that company’s sprawling Hobet 21 mine complex.

“EPA came out with its benchmark for the minimum levels of safe conductivity pollution years ago, and the science behind it has only gotten stronger—so why does it still fall to citizen groups to actually enforce EPA’s guidance?” said Jim Sconyers of the West Virginia Sierra Club. “State and federal regulators are asleep at the wheel while our streams are devastated and our communities suffer.”

The citizen groups who are parties to today’s settlement, along with other local, regional, and national organizations, have long called on the Obama administration to act on the overwhelming scientific evidence and establish an enforceable water quality standard on conductivity pollution from surface coal mines in Appalachia.

The settlement will be lodged with the court for 45 days pending review by the U.S. Department of Justice. The citizen groups were represented in this matter by attorneys with Appalachian Mountain Advocates and Public Justice.