Suit by Greens Against Mining Company Nixed

     (CN) – A Virginia coal company cannot be sued for allegedly violating water-pollution standards if the regulating agency finds it in compliance, a federal judge ruled.
     Southern Appalachian Mountain Stewards, the Sierra Club and Appalachian Voices sued the Red River Coal Company Inc. under the Clean Water Act, alleging the firm was violating a condition of its National Pollution Discharge Elimination System permits.
     According to the nonprofits, Red River’s Flat Gap Mine in Wise County, Virginia discharges pollutants into the South Fork of the Pound River at a higher rate than is allowed by the Virginia Division of Mined Land Reclamation.
     But U.S. District Judge James Jones noted in his opinion that the state agency itself disagrees with that assessment, and he saw no reason to disregard its analysis.
     Among the conditions of a NPDES permit, James explained, is that any pollutants discharged into a body of water must not be higher than the approved Total Maximum Daily Load.
     The plaintiffs argued that Red River’s pollutant levels are clearly higher than the TMDL for the Pound River, which was established by the State Water Control Board a year after Red River renewed its Flat Gap permit.
     The mining company countered that the TMDL in question specifically calls for a phased implementation under the guidance of the Environmental Protection Agency. Phased TMDLs are established when there is data uncertainty and the agencies expect revisions in the near future, Jones wrote.
     The Virginia Department of Environmental Quality was supposed to submit a revised TMDL document within two years of the April 2011 approval of the initial TMDL, but the plaintiffs said all parties agree a revised TMDL has never been filed. Without a revised TMDL, Red River has continued to follow practices as outlined by the phased approach.
     Although the DMLR has not revised the initial TMDL, it has continued to monitor Red River’s compliance with the established load, as demonstrated by a letter DMLR wrote to Red River in April 2014, giving the company notice of the need for new wasteload reduction actions.
     The environmental groups alleged that Red River is not in compliance with its permit, but they did not argue that DMLR has incorrectly interpreted the permit, Jones wrote.
     If the agency’s regulatory practices are not being called into question, then no question of material fact remains, according to Jones’ opinion. DMLR “has made it clear” that Red River has complied with all its requirements, Jones wrote, granting Red River’s motion for summary judgment.

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