A federal judge has ruled a coal company owned by the family of West Virginia Gov. Jim Justice is liable for more than 3,000 violations of federal clean water standards stemming from pollution discharged from a coal mine in southern West Virginia.
In a motion issued Monday, U.S. District Judge David Faber ruled Bluestone Coal Corporation discharged selenium at the Red Fox Surface Mine in McDowell County many times at levels above its permitted allowances from July 2018 to March 2020. Selenium is a chemical element found in coal that accumulates in the body and has been linked to growth deformities and reproductive failure in fish.
Data submitted by the company to regulators showed 60 violations of its monthly average limit for
selenium and 78 violations of its daily maximum limit for selenium. Under the Clean Water Act, each violation of a monthly average limit is treated as a violation for every day in the month in which the violation occurred, rather than as a single violation for that month. In total, Faber found Bluestone was liable for 3,033 days of violations of the Clean Water Act.
Faber also ruled that the company violated its permit under the federal Surface Mining Control and Reclamation Act 183 times.
The lawsuit was brought by four environmental groups — the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Appalachian Voices and the Sierra Club — under the citizen suit provision of the Clean Water Act.
Last month, Faber rejected Bluestone’s request to have the lawsuit dismissed. The company argued a 2016 settlement deal reached with the Environmental Protection Agency precluded environmental groups from suing over the selenium pollution.
In his opinion, Faber noted enforcement under the Clean Water Act is set up to be simple, and Bluestone’s own data showed repeated violations.
If and how much Bluestone should pay for violating the Clean Water Act, as well as if they will be required to install selenium treatment systems at the mine, will be decided at trial.
According to the document, the company has already paid $278,000 in penalties for selenium violations at the mine occurring from July 2018 to June 30, 2019.
Environmental groups are seeking additional penalties for the selenium pollution. In previous court filings, the groups estimate the maximum civil penalty under the Clean Water Act for Bluestone’s violations could top $160 million.
A request for comment from Bluestone or its lawyers listed on the court docket was not immediately returned. In a response filed with the court, Bluestone’s lawyers argued a pending modification to its pollution discharge permit by the West Virginia Department of Environmental Protection, if it had been in place, would have placed three of the four places where selenium is entering the environment into compliance.
The company further argued the levels of selenium being leaked from the mine “show there was no harm to the aquatic life under DEP’s standards.”