This article originally published by The State Journal

June 21, 2007

Federal Pond Ruling Troubles Coal

Story by Beth Gorczyca Ryan Email | Bio

Coal companies in West Virginia are scrambling this week to determine how to best filter pollutants out of streams coming from valley fills after a federal judge ruled the use of sediment ponds to be illegal.

U.S. District Judge Robert "Chuck" Chambers issued a summary judgment June 14 that essentially outlaws the use of sediment ponds in large surface mining operations in southern West Virginia. In his ruling, Chambers said the water in the ponds are really small stream segments, and that means the ponds must comply with the Clean Water Act.

He said the U.S. Army Corps of Engineers has violated those environmental laws because it allows coal companies to discharge waste into the ponds without any special permits required by the Clean Water Act. The Corps did that because it defined the ponds as "waste treatment systems." Waste systems are exempt from the Act's water quality standards.

However, in his ruling, Chambers said that definition is wrong.

"The Court finds the 'waste treatment system' exclusion inapplicable to the stream segments below the valley fills and finds the Corps does not possess authority to permit the discharge of pollutants into these stream segments pursuant to the Clean Water Act," the judge wrote in his opinion.

Coal companies create sediment ponds by damming streams coming from valley fills. Coal companies create valley fills when they dump excess rubble and rock left over from large surface mining operations into nearby ravines, burying small-scale streams. Surface water and groundwater flowing from the valley fill drain into the toe of the fill where it eventually runs into streams.

In an attempt to reduce the amount of pollutants flowing downstream, coal companies dam up a portion of the stream to create a pond where any type of sediment or fill material can settle to the bottom and be removed. Chambers' ruling noted that the use of ponds has been a standard industry practice for several decades.

"In the regulations it's implicit that sediment ponds be used," said Jason Bostic of the West Virginia Coal Association, an intervener in the lawsuit on behalf of the Corps and four Massey Energy subsidiaries. "It's the best available technology. ... It's been clear since the regulations went into place that (sediment ponds) are the best way to comply with effluent requirements."

The ruling was the latest step in a two-year-old legal battle between three environmental groups and the Corps concerning the permitting and use of valley fills at the Camp Branch, Black Castle and Republic No. 2 surface mines. The three environmental groups -- Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch -- along with attorneys from EarthJustice and the Appalachian Center for the Economy and Environment allege the practice violates the Clean Water Act and the National Environmental Policy Act.

And for much of the long legal battle, Chambers has agreed with them, including the June 14 ruling.

"We are thrilled that Judge Chambers has given the American people back their right to have clean water," said Judy Bonds and Vernon Haltom of the Coal River Mountain Watch. "What gives the coal industry the right to use our water for their personal waste disposal ditch?"

But Bostic said nothing could be further from the truth. He said the whole reason coal companies install the ponds is to create an area where sediment in water can settle to the bottom and be removed before the water mixes with streams and rivers.

"This is done for environmental protection," Bostic said. "It is ridiculous that a judge would take a shot at something that is designed to protect the environment and that the groups would pursue this. This very same issue has been settled three times before."

He said he doesn't know how companies will be able to meet the requirements of the Clean Water Act without using some sort of pond or containment area to collect and filter runoff water.

"This has turned the Surface Mining Control and Reclamation Act and the Clean Water Act on its head," Bostic said. "This judge's decision says the Clean Water Act is illegal. It says SMCRA is illegal. It's surreal."

But Bonds and Haltom don't think that's the case. They said the Corps has become too close to the coal industry and is no longer able to adequately regulate it through SMCRA or the Clean Water Act. As a result, coal companies have been able to do whatever they want, they said. That's why they have turned to the legal system.

"For too long, government agencies have used the 'don't-look-and-don't-see' attitude in regulating the coal industry, which has allowed the industry to regulate itself. The fox is guarding the henhouse," Bonds and Haltom said. "It is time that the coal industry is made to obey laws the same way that citizens have to obey the laws.

"This reminds us of the overweight coal trucks that crushed roads, bridges and citizens for over 20 years until finally citizens stepped up and demanded changes. We demanded that our government force the industry to obey the laws that we regular citizens obey."

In addition to wondering how they will abide by this ruling, coal companies and other industries in the state now are wondering whether the ruling will impact any other types of businesses. After all, sediment ponds are used in almost all large construction projects, from building large-scale housing and shopping developments to building highways.

"We really don't know how it will impact us, but we are reviewing it closely," said Mike Clowser, executive director of the Contractors Association of West Virginia. "I hope it does not, but right now it is really too early to say."

The Coal Association, however, fears it will have an impact.

"If it applies to us, it's just a matter of time before it trickles down to other industries," Bostic said.

The environmental groups said how this ruling will impact other industries depends a lot on how those industries plan to use sediment ponds.

"The scale is completely different, of course, as mountaintop removal is so vast with relatively no development," Haltom and Bonds said. "As to how this decision affects development projects, that would be best answered by those doing the development. Valley fills and sediment ponds associated with mountaintop removal are not for the purpose of development but for waste disposal. No industry should be allowed to take streams belonging to the people to be used as waste dumps."