West Virginia Governor’s Coal Mine Faces Penalties for Selenium Violations

U.S. District Judge David A. Faber of the Southern District of West Virginia ruled on Monday that a West Virginia Coal plant violated the Clean Water Act and other statutes by releasing above the allotted limit of selenium allowed by the company’s permits. The court ruled that Bluestone Coal Company was in violation of the Clean Water Act since June 21, 2017, when the company should have begun construction on a selenium treatment system.

The plaintiffs in the case include Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Appalachian Voices, and The Sierra Club. They alleged that local streams contain higher levels of selenium, which affects the fish and other aquatic life as well as aesthetic enjoyment of the recreational areas.

The Bluestone Coal Company, which is owned by Governor James Justice of West Virginia,  allegedly violated the monthly average selenium output limit 60 times and the daily limit 78 times at specific outlets of the company’s Red Fox Surface Mine between July 2018 and March 2020. The document states that Bluestone does not deny that its discharges exceeded the permitted limits. The defendant has already paid over $275,000 in penalties for selenium violations during this time period but allegedly has not paid penalties for 40 of the daily limit violations since July 2018.

The order addressed the defendant’s request, which was already denied, to dismiss the case because a 2016 consent decree entered against Southern Coal Corporation, of which Bluestone Coal is a subsidiary, should cover some of the environmental harm addressed in this case. This order stated that the violations of selenium limitations based on the permit are the main issue in the current case and the Red Fox Mine Outlets considered for selenium violations, outlets 005-008, were not at issue in the previous dispute. It also cites a provision in that decree which stated it would not “limit the rights of third parties” to file complaints against the defendants.

Judge Faber also addressed in his order motions for summary judgment from both the plaintiffs and the defendant. He denied the motion from the defendants, which the order said the case made in briefs filed by both sides responding to the motion “closely follow the arguments set forth in the briefings on defendant’s motion to dismiss.”

In response to the plaintiff’s motion, the judge ruled that the parties showed sufficient injury because “they have concrete aesthetic and recreational interests that are harmed by defendant’s selenium discharges.” The judge further ruled that the relief sought was within the power of the court. The relief sought included injunctive and declaratory relief. The court, however, denied summary judgment to West Virginia Highlands Conservatory because “there is a genuine issue of material fact as to standing,” since the organization did not include an individual who would have standing to sue in its own right.