Mountaintop Removal Mines are not automatically shielded; will be held accountable for unpermitted pollution

Wise County, VA – Today, the U.S. Fourth Circuit Court of Appeals upheld a lower court decision that A&G Coal Corporation, a subsidiary owned by coal billionaire Jim Justice, is responsible for toxic selenium pollution from its Kelly Branch Surface Mine in Wise County, Virginia. The ruling sets a precedent that coal mines in Virginia which produce selenium pollution will be held accountable unless they explicitly disclose the potential for discharges of that pollution to the state as part of the permit application process.

The ruling upholds an earlier district court opinion in favor of a coalition of environmental groups which brought the case against A&G, including Southern Appalachian Mountain Stewards, Appalachian Voices, and Sierra Club.

The ruling’s significance extends beyond Mountaintop removal mining in Virginia, as it sets an important precedent for any lawsuit challenging any facility claiming a “permit shield” for discharges of pollution that are not limited by the Clean Water Act discharge (NPDES) permit. Other states covered by the 4th District Circuit Court include West Virginia, South Carolina, North Carolina and Maryland.

Water monitoring conducted by the groups demonstrated that A&G’s Kelly Branch Mine dumped the toxic pollutant selenium into streams at levels above state water quality standards, even though the mine’s permit does not allow such pollution. The groups’ lawsuit alleged that the unpermitted pollution was in violation of the Clean Water Act and Surface Mining Control and Reclamation Act.

“Today, the courts are forcing coal billionaire Jim Justice to clean up his polluting mine in Wise County,” said Marley Green, Community Organizer with the Sierra Club in Southwest Virginia. “We are happy to see the courts uphold laws meant to protect communities and promote healthy streams. Pollutants like selenium, dumped by mountaintop removal operations, have left our creeks and rivers struggling to sustain life, and it’s past time that those responsible are held accountable.”

Selenium, a toxic element that can cause reproductive failure and deformities in fish and other forms of aquatic life, is discharged from many surface coal mining operations across Appalachia. Selenium accumulates in the tissues of aquatic organisms over time, and experts predict that waterways across Appalachia could be on the brink of collapse due to increasing levels of the pollutant.

“It’s good to see the courts standing for the people, and not bowing down to King Coal. Looking at what’s right and what’s wrong, and not just what’s best for the corporations” said Sam Broach, President of Southern Appalachian Mountain Stewards, “We need better protection from this powerful industry, and from industry tycoons like Jim Justice, to make sure that when they leave town, we’re not left holding the bill for toxic pollution.”

“This is a great decision for the people and streams of Virginia,” said Eric Chance, Water Quality Specialist for Appalachian Voices. “Making sure mining companies have to deal with all of their toxic pollution is crucial to the health of streams, people and local economies. In Virginia recreational fishing employs 20 times more people than surface mining does.”

Southern Appalachian Mountain Stewards, Appalachian Voices, and the Sierra Club were represented in this matter by Isak Howell and Joe Lovett of Appalachian Mountain Advocates.

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