(CN) - The Sierra Club and others are challenging an Interior Department's decision to inspect a rural Virginia coal mine without notice to environmentalists before it concluded the amount of selenium leaching from the mine into nearby waters did not exceed acceptable levels.
In their federal complaint, the Sierra Club and the Southern Appalachian Mountain Stewards said they have long been clamoring to participate in an inspection of the Greater Wise No. 1 mine, which is run by the Red River Coal Company.
The plaintiffs say that based on publically available data, the mine operation is discharging selenium, a mineral that can be toxic in large amounts, into nearby waters at an alarming rate.
The pollution, the environmentalists say, "caused a violation of Virginia's chronic aquatic life water quality" and directly violated both the Clean Water Act and the Surface Mining Control and Reclamation Act.
What's more, they say, the permit held by Red River - issued pursuant to section 1342 of the Reclamation Act - "did not authorize the discharge of selenium in any amount."
The groups say they first alerted state and federal regulators to the high "in stream levels of the toxic pollutant selenium" in January 2014.
They also requested to participate in an inspection of the mine, a request that was immediately denied by the Virginia Department of Mines, Minerals and Energy.
In explaining their denial, state regulars said Red River's permit "did not have selenium effluent limitations," therefore there could be no violation that would warrant a citizen inspection.
The agency also said that "Red River will be required to address selenium upon renewal of its permit in the future."
The environmentalists fought the state denial, following administrative procedure, and at the same time, sent notice of the alleged pollution violations by the mine to the federal Office of Surface Mining Reclamation and Enforcement.
Based on that complaint, both federal and state regulators made an inspection and issued Red River a notice demanding it rectify the pollution problem.
But the environmentalists were not satisfied.
"[N]either agency notified Plaintiffs or allowed
Plaintiffs' representative to be present at the inspection," they say. "Such notification and right of entry are
Months later, the Office of Surface Mining ruled that state regulators had been wrong when they denied the environmentalists' request to participate in the inspections.
OSM called that decision "arbitrary because its rationale relied on future permitting actions at the time of potential renewal rather than on current permit violations."
But that wasn't the last word on the matter. A short time later, the plaintiffs received a letter from the regional director for the OSM's Appalachian Region that said the state's inspections had been "sufficient to warrant reversal" of the OSM earlier decision.
In short, the feds were now saying, "no harm, no foul."
In their complaint, the environmentalists argue that OSM's current position on the inspection issue couldn't be more wrong.
"The Board ignored pertinent data, applied the incorrect legal standard, excused unlawful procedures, and ultimately affirmed the regulatory actions at issue," the complaint says.
"If upheld, the Board's decision would permit regulatory authorities ... to systematically and uniformly deny citizens their legal right to be present at mine site inspections where there is a reason to believe violations are occurring and ... to rely on data collected in violation of the law."
The plaintiffs are asking the federal court to reverse the OSM decision in regard to the state's denial of citizen participation in the mine inspection, and are also seeking another federal inspection of the mine.
They are represented by Isak Howell, of Appalachian Mountain Advocates in Lewisburg, West Virginia, and Walton Morris Jr., of Charlottesville, Virginia.
Kimberly Brubeck, a spokesperson for the Interior Department declined to comment on pending litigation.
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