Publication / Inside EPA
February 24, 2014
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Fearing Weaker Limits, Advocates Sue Landowners Over Selenium Releases

Environmentalists are increasingly suing Appalachian landowners for unpermitted releases of selenium from abandoned coal mines on their land, expanding on a strategy that until now has targeted mine operators amid fears that regulators are adopting new water quality standards that are weaker, and more difficult to enforce, than current limits.

Since 2013, for example, Appalachian Mountain Advocates (AMA) and other groups have filed five suits in the U.S. District Court for the Southern District of West Virginia, all of which directly target landowners–not coal mine operators–for unlawful releases of selenium.

The group’s efforts have already made progress. Late last year, Judge Joseph Goodwin ruled in Ohio Valley Environmental Coalition, Inc., et al., v. Hernshaw Partners, LLC, to reject the defendant’s motion to dismiss. Goodwin found that the plaintiffs had standing to sue and that their Clean Water Act (CWA) claims are plausible, rejecting a series of defenses that sought to protect the landowner from liability. Relevant documents are available on InsideEPA.com. (Doc ID: 2462055)

Other groups have also filed similar suits in other courts. Appalachian Voices, Sierra Club and Southern Appalachian Mountain Stewards Jan. 28 filed a complaint in the U.S. District Court for the Western District of Virginia targeting Penn Virginia Operating Company for unpermitted selenium releases from abandoned mines on its land.

“The point sources are untreated and therefore discharges continue and are likely to continue unabated. Accordingly, Plaintiffs allege that Penn Virginia is in continuous and/or intermittent violation of the prohibition against unpermitted discharges of pollutants,” the Jan. 28 complaint says.

A mine operator next to Penn Virginia’s land, A&G Coal Corp., is already facing a novel challenge from Southern Appalachian Mountain Stewards seeking to break the permit shield that usually protects regulated entities from citizen suits for unpermitted discharges. In the case, pending before the U.S. Court of Appeals for the 4th Circuit, advocates are urging the appellate court to uphold a 2013 district court ruling that found the operators liable for selenium discharges regardless of claims that it did not know selenium might be present at the facility when it applied for a discharge permit.

The suits come as EPA recently approved Kentucky’s novel water quality criteria for selenium that for the first time measures levels in fish tissue rather than the water column. Environmentalists, who have already sued EPA over its Nov. 15 decision, fear that West Virginia and Virginia will adopt similar measures that they believe are difficult to enforce and implement.

Lawmakers in the two states have approved legislation directing their environmental agencies to assess whether a similar standard would be beneficial, though the results of their studies will not be released for some time.

Under the CWA, EPA adopts risk-based water quality criteria that set a safe concentration for contaminants in water to ensure it will not harm fish and other aquatic life. States then craft their own enforceable water quality standards (WQS) based on the criteria and establish National Pollutant Discharge Elimination System (NPDES) permit limits based on the recommended levels in the criteria.

Selenium is a naturally occurring non-metal stemming from discharges by a variety of industries and is linked to mortality, growth impediments and other adverse effects in aquatic species.

EPA’s current criteria for selenium, issued in 1987, is based on concentration of the substance in the water column. That criteria, 5 micrograms per liter (ug/L) for chronic exposures and 20 ug/L for acute exposures, is extremely difficult to meet in discharge permits, resulting in a spate of citizen suits across mining states where environmentalists use litigation to challenge surface mining in the region.

Many states and industry groups, especially coal mining operations in Appalachia, have welcomed the agency’s approval of Kentucky’s standard as a way to head off dozens of suits pending in courts in the region. The suits have been aided by EPA’s strict 1987 criteria, which was crafted before large-scale surface mining operations began in the region.

The suits have provided environmentalists with one of the few means of targeting releases from the mines as federal courts have stymied several EPA policy measures aimed at addressing water quality impacts of the operations.

While most of the citizen suits have targeted operators, environmentalists are now increasingly targeting landowners too. A source with AMA says many landowners in West Virginia fail to hold such permits, often because they do not realize they remain responsible for releases once active mining ends. “The pollution is continuing long after the mining has ceased, and the CWA doesn’t require that there be active mining going on,” says a source with the group.

Although the source says lawsuits against landowners are not necessarily a direct result of Kentucky’s new standards, others are concerned that West Virginia and other states are seeking to adopt similar approaches and they are seeking to ensure continued accountability for those who release selenium.

“We’re concerned about the effects that selenium has in the environment, and we are using whatever tools we have to fight it,” says a Sierra Club source.

Another environmentalist says the advocate’s lawsuits in West Virginia specifically target large landowning trusts and absentee landowners, not “mom and pop” owners, many of whom leased their land to coal mine operators in the early 1900s.

In addition to asserting the need to curb selenium releases in streams, environmentalists hope that the suits will deter future landowners from leasing their property to operators because of the cleanup and permitting burdens they’ll face.

“The main focus is water quality and holding the land owners and coal operators accountable for coal operations,” says the AMA source. “The main form of relief that these cases ask for is to have these [landowners] go apply for a permit and if that happens, there’s a greater amount of authority given to the West Virginia permitting authority.”