Big Stone Gap, VA – US District Court Judge Jones last week sided with Red River Coal Company regarding enforcement of the Clean Water Act. The decision allows the Virginia Division of Mined Land Reclamation (DMLR) to decide if and how to enforce pollutant limits contained within Total Maximum Daily Load (TMDL) plans. Those plans are intended to help polluted streams recover by setting caps on the amount of pollutants that can be discharged by specific sources. In this case, the pollutant limits assigned to Red River’s mines are decidedly not being enforced and the streams receiving their discharges remain polluted.
In June of last year, citizens and environmental groups filed a lawsuit against Red River Coal Company for discharges of water pollution in violation of the Clean Water Act from several of the company’s mountaintop removal mines in Wise County. The mines in question discharged total dissolved solids and total suspended solids into the South Fork Pound River. Virginia regulators had previously determined that the South Fork Pound does not adequately support aquatic life, due to the high levels of these mining-related pollutants. In response, regulators developed a TMDL, which mandates the maximum amount of specific pollutants the entire stream can receive while still meeting water quality standards and allocates acceptable pollutant loads to individual dischargers in the watershed. Red River, the groups discovered, was single handedly exceeding not just the allocations for its individual mines, but the allocation for all sources in the entire South Fork Pound River .
In reaching yesterday’s decision, the court relied heavily on opinions expressed by Virginia regulators. Unfortunately, those regulators have declined to give effect to the limitations plainly stated in the TMDL and incorporated into the mines’ permits, and have opted instead to allow ongoing pollution into the impaired stream. In addition, during the course of the case, Virginia regulators allowed Red River to deconstruct the wastewater sediment ponds on three of the four permits at issue in the litigation, despite the ongoing exceedances of the TMDLs limits at those mines. Deconstruction of these wastewater treatment ponds allows unlimited ongoing pollution discharges because DMLR does not require Clean Water Act permits for the polluted surface water runoff from the mines once the ponds are removed.
“The purpose of TMDLs is to protect and improve streams,” said Matt Hepler, Water and enforcement organizer for Southern Appalachian Mountain Stewards. “If the pollutant limits within these plans are not enforced, the plans do not work. We believe TMDLs are not being effectively enforced across southwestern Virginia. That is born out by the fact that most of the waters downstream from coal mines continue to have high levels of TDS and TSS pollution”
The state of Virginia interprets its TMDLs as establishing “aggregate” waste load allocations, as a result of a settlement between the mining industry and the VA Department of Mines, Minerals, and Energy. In this scenario, all mine permits in a watershed “share” the total waste load allocation for a pollutant, even if, as here, the TMDL assigns individual waste load allocations to specific mines . This strategy allows individual permits — as in this case — to discharge up to 100% of the waste load allocation before enforcement action can be taken. Even then enforcement is completely up to the discretion of the agency. Based on that interpretation, DMLR considers Red River to be in compliance with its permits despite the fact that a single outfall at one of its mines exceeded the dissolved solids limits for the entire watershed.
“The enforcement of pollution limits within the context of TMDLs has become more and more lax in southwest Virginia,” said Erin Savage, Central Appalachian Campaign Coordinator for Appalachian Voices. “If the state does not enforce these plans, then citizens’ groups must step in. Unfortunately, the state agencies interpret the plans to contain loopholes that make citizen enforcement practically impossible.”