In Precedent-Setting Settlement, Citizens Compel Reclaimed Mountaintop Removal Mine Owner to Apply for Pollution Permit

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Former Mountaintop Removal Mine Site Still Discharging Toxic Selenium
Adam Beitman, Sierra Club, (202) 675-2385
Jim Sconyers, West Virginia Sierra Club, (304) 698-9628,
Vivian Stockman, Ohio Valley Environmental Coalition, (304) 360-1979,
Cindy Rank, West Virginia Highlands Conservancy, (304) 924-5802,

Charleston, WV – Today, corporate landowner Hernshaw Partners, LLC, agreed in a settlement to apply for a Clean Water Act permit for its ongoing pollution from a coal mining waste valley fill on its property in Mingo County, West Virginia. The property is the former site of a surface coal mine that had all of its permits released by the end of 1997. When a permit is released, the regulator is supposed to determine whether any discharges are still ongoing, and the company then no longer has to report its pollution or make sure its discharges stay within permit limits. Despite the permit release, monitoring by citizen groups showed that the valley fill remains in place and is still discharging the toxic pollutant selenium at levels that exceed federal and state water quality standards. Clean streams are vital to a thriving economy and continued pollution discharges threaten the economic vitality of a community. The groups who brought the citizen enforcement suit and entered into today’s agreement include Ohio Valley Environmental Coalition, Sierra Club, and West Virginia Highlands Conservancy.

“It is extremely troubling that this mine is still discharging high levels of pollution almost twenty years after its so-called ‘reclamation’” said Jim Sconyers of the West Virginia Sierra Club. “But what’s really disturbing is that the West Virginia Department of Environmental Protection released the permit in the first place, and hasn’t done anything to stop the pollution since then.”

Under the terms of the agreement, Hernshaw Partners must apply to the West Virginia Department of Environmental Protection for a Clean Water Act discharge permit.  As part of its application, the company must report the results of recent selenium monitoring.  That data shows ongoing exceedances of the water quality standard.  The parties have lodged the settlement agreement with the federal district court.  The agreement must still undergo review by the Environmental Protection Agency and U.S. Department of Justice.

“While we’re glad that Hernshaw Partners ultimately recognized that they must have a permit for their ongoing pollution, other central Appalachian streams are still in peril from so-called reclaimed surface coal mines,” said Vivian Stockman of the Ohio Valley Environmental Coalition. “This long-term pollution is just one reason why no more new surface mines should be permitted.”

One of the leading sources of selenium contamination of streams and rivers is coal mining. Surface coal mining disturbs layers of earth containing high levels of selenium, and then places the toxic material directly into streams in the form of valley fills. Precipitation and stream flow through the fills introduces selenium into aquatic ecosystems. Since selenium builds up in living organisms over time, even small concentrations of the pollutant in the environment can accumulate dramatically in the tissue of fish and wildlife. Fish and birds are poisoned by eating selenium-laden food, including contaminated insects, smaller fish and vegetation. In addition, selenium can cause reproductive problems in fish and wildlife as it’s passed from parents to offspring in eggs. In fish, ingestion of toxic amounts of selenium can cause total reproductive failure, birth defects and damage to gills and internal organs.

“Mountaintop removal coal mines are dirty; they pollute nearby streams and disrupt the hydrology of the area. They’re dirty when they’re operating, and they’re even dirty decades after they’ve closed,” said Cindy Rank of West Virginia Highlands Conservancy. “Although today’s settlement is a step in the right direction for addressing legacy pollution from these mines, the real answer is to stop permitting these mines in the first place.”

The citizen groups were represented in this litigation by Ben Luckett and Joe Lovett of Appalachian Mountain Advocates.

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