Bandmill Coal sued over alleged selenium discharge
by Kyla Asbury
The West Virginia Record
HUNTINGTON – Three environmental groups are suing Bandmill Coal Corp. after they claim it has been discharging selenium into waterways.
Bandmill has held a permit to regulate water pollution from its Tower Mountain Surface Mine and constructed Valley Fills 1R and 1F in the headwaters of Burgess Branch of Right Hand Fork of Rum Creek of the Guyandotte River, which are navigable waters of the United States, according to a complaint filed April 2 in the U.S. District Court for the Southern District of West Virginia at Huntington.
Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and the Sierra Club claim the defendant constructed Pond 1 of the Tower Mine Surface Mine in Burgess Branch to treat discharges from Valley Fills 1R and 1L, and the defendant’s permit authorizes it to discharge into Burgess Branch of the Guyandotte River from Pond 1 through Outfall 001.
On June 15, 2011, the West Virginia Department of Environmental Protection’s Watershed Assessment Branch sampled water quality in Burgess Branch of the Right Hand Fork of Rum Creek of the Guyandotte River and that sampling effort revealed that the selenium concentration was higher than it was supposed to be, according to the suit.
The plaintiffs claim because the selenium concentration in the Burgess Branch well downstream of Valley Fills 1R and 1F exceeded the acute selenium water quality criterion, they believe that both fills are discharging selenium.
Bandmill is discharging selenium into the headwaters of Burgess Branch directly without a permit, in violation of the Clean Water Act, according to the suit.
The plaintiffs claim Bandmill’s wastewater discharges are discharges from a point source or sources into navigable waters of the United States within the meaning of Section 301 of the Clean Water Act, which prohibits the discharge of any pollutant by any person, except in compliance with a permit.
Bandmill’s permit does not authorized the discharge of selenium from Valley Fill 1R or Valley Fill 1L, as required for legal discharge by the Clean Water Act, according to the suit.
The plaintiffs claim Bandmill is in continuing and/or intermittent violation of the Clean Water Act as a result of its ongoing selenium discharges because it has taken no meaningful action to eradicate the underlying cause of the discharges or to obtain a permit for the discharges.
Unless enjoined, Bandmill will remain in continuing or intermittent violation of the Clean Water Act, according to the suit.
The plaintiffs are seeking the court to enter an order declaring the defendant has violated and is in continuing violation of the Clean Water Act; enjoining the defendant from operating the Tower Mountain Surface Mine in such a manner that will result in further unpermitted discharges of selenium; ordering the defendant to pay appropriate civil penalties up to $37,500 per day for each Clean Water Act violation; and ordering the defendant to conduct monitoring and sampling to determine the environmental effects of its violations, to remedy and repair the environmental contamination and/or degradation caused by its violations and restore the environment to its prior uncontaminated condition. The plaintiffs are being represented by Derek O. Teaney and Joseph M. Lovett of Appalachian Mountain Advocates.
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