Landowners Facing Novel Clean Water Act Citizen Suits at Reclaimed Mines
Environmental interest groups have filed a series of Clean Water Act citizen suits in federal court in West Virginia alleging that water discharges from reclaimed mining facilities are violating the CWA. So far, the environmental groups, Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Inc., and the Sierra Club, have filed five lawsuits against landholding companies alleging that valley fills created during the mining process are unpermitted point sources of pollutants, in violation of the Clean Water Act.
The lawsuits are unique because they are filed against landowners who did not engage in the mining activities that created the valley fills. The lawsuits also threaten to greatly expand the scope of Clean Water Act liability because they relate to sites where government agencies have already given final approval to reclamation activities and terminated the facilities’ wastewater discharge permits. In order to obtain termination of surface mining and wastewater discharge permits, companies must demonstrate that all reclamation requirements have been met, and that discharges meet all applicable effluent limitations. In each of these cases, the West Virginia regulatory authorities made these findings and terminated both the surface mining and wastewater discharge permits. However, the plaintiffs are alleging that valley fills created by the mining process continue to discharge pollutants even after the mining and reclamation process is complete.
Valley fills, or hollow fills, are created during the mining process when rock, dirt, and other overburden are placed in streams during the excavation of coal seams. These fills are designed for water to drain through the fill to its “toe” at the bottom. Surface mining laws specifically authorize the creation of such fills if mining companies obtain the necessary permits. Each of the fills in these cases was permitted, and final termination of the surface mining permits was approved by state regulatory agencies. The environmental interest plaintiffs, however, allege that the toes of the valley fills continue to discharge wastewater containing selenium, a pollutant that is common in coal seams in West Virginia.
Each of the five cases was filed in May or June of this year, and the landowners have not yet responded to the allegations in the complaints. The cases are likely to be closely watched by state regulators and owners of coal-producing properties. If the plaintiffs prevail, owners of coal properties will be at a substantially increased risk of Clean Water Act liability, years after surface mining operations have ceased.
To view a complete PDF of the May/June 2013 issue of the Environmental Letter, click HERE.