By Lyra Bordelon
A McDowell County coal mine owned by the family of Governor Jim Justice was found liable for over 3,000 violations of the Clean Water Act for dumping excessive selenium by a summary judgment from Senior United States District Judge David Faber in federal court on July 27.
The civil suit was brought against Bluestone Coal Corporation by West Virginia Highlands Conservancy, Appalachian Voices, and the Sierra Club for violations at the Red Fox Mine, including excess selenium discharge.
“The coal mine is located in McDowell County, WV, and owned by the family of Governor Jim Justice,” explained the Sierra Club in a press release following the ruling. “The ruling validates community members’ concerns that the mine seriously exceed water discharge limits for the toxic pollutant selenium. The mine discharged this dangerous chemical into the tributaries of Jacob’s Fork, which itself discharges into the waters of the Tug Fork River.”
In order to operate, the mine has to receive a permit from the federal government, and is required to follow emissions guidelines set by the Clean Water Act and other laws. This includes a cap on selenium dumping.
“According to its quarterly reports, [Bluestone] violated its monthly average selenium limit 60 times and its daily maximum selenium limit 78 times at Outlets 005, 006, 007, and 008 from July 2018 through March 2020,” reads Faber’s order. “Defendant does not deny that that its discharges at these Outlets exceeded permitted levels for selenium discharge. … Plaintiffs seek civil penalties for defendant’s violations, among other remedies such as an injunction requiring defendant to immediately comply with the effluent limitations within [the mine’s operating permit.]”
According to the documents, Bluestone previously paid penalties for selenium dumping outside of the limits of its permit, and that the pollution continued for months after.
Bluestone “paid approximately $278,000 in stipulated penalties for those selenium effluent violations at Red Fox Mine occurring from July 2018 to June 30, 2019. Defendant states it has also paid additional stipulated penalties for violations occurring after June 30, 2019. However, defendant has paid no stipulated penalties for 40 violations of the daily maximum selenium limit at Outlets 005-008 from July 2018 through the first quarter of 2020. … Therefore, as of July 24, 2020, that constitutes 1,129 days of violation. Altogether then, there is no genuine issue of material fact that defendant is liable for 3,033 days of violations of the Clean Water Act.”
Due to the nature of each plaintiff organization, the summary judgment was granted on behalf of OVEC, Appalachian Voices, and the Sierra Club, but denied the West Virginia Highlands Conservancy. In June, the court denied a motion on behalf of Bluestone to have the suit dismissed. However, the plaintiff’s motion for partial summary judgment was approved after it was shown there was an “injury in fact” and is “fairly traceable to the challenged action of the defendant” and “will be redressed by a favorable decision.”
“Dustin White is a member of OVEC and Erin Savage belongs to Appalachian Voices and Sierra Club,” reads the order. “Mr. White has visited the receiving streams several times over the last four or five years, including in December 2019, and intends to return in the future. Mr. White refrains from fishing in the streams because they are impaired by mine pollution. Ms. Savage has visited the receiving streams since 2014, including in 2019, and intends to return in the future. Her aesthetic enjoyment of those streams is lessened because she knows that the streams are listed as impaired for selenium, and that selenium can adversely affects the aquatic life and fish in the streams. … Concerns about selenium pollution are sufficient to support a finding that a user of the affected stream has a particularized injury.”
Next the court will consider how to address the pollution and how much the company will have to pay in penalties. This could also include requirements for installing selenium treatment systems at “any or all outlets with continuing selenium violations.” A trial is currently set for September 23 in order to determine this.
