A&G Coal Corp. cited for releasing pollutant without a permit 

A subsidiary of Roanoke-based Southern Coal Corp. has been found liable for a violation of the Clean Water Act for releasing the regulated pollutant selenium at a coal mine without a permit.

A&G Coal Corp. could face a civil fine in a later stage of the federal case, which was brought by Southern Appalachian Mountain Stewards, the Sierra Club and Appalachian Voices on grounds that their members use the Wise County creeks and streams involved.

Judge James Jones of U.S. District Court in Big Stone Gap ruled for the environmental groups before trial after determining the facts were in their favor. The company admitted that it released selenium at its Kelly Branch surface mine near the Kentucky border and that it didn’t have a permit to do so, according to the ruling.

The judge told the company to apply for an updated Virginia discharge permit that includes selenium and to begin daily tests next week — information Jones could use to fine A&G.

Corinne Martin, a lawyer for A&G, declined to discuss the ruling.

“We are evaluating our options,” Martin said.

While present in the environment naturally and harmless when contained in rock, selenium is a metal exposed during surface mining that in high concentrations harms aquatic life. In humans, it can damage the kidneys, liver, nervous system and circulatory system.

Southern Appalachian Mountain Stewards is a 7-year-old nonprofit group with about 20 active members in the town of Appalachia that opposes surface mining and the harmful effects on nearby communities. The Kelly Branch mine is a few miles northeast of the town.

The health of the people of the Appalachian coal-producing region “is not where it should be due to pollution from mountaintop removal mining,” member Ben Hooper said in a prepared release. “This ruling is great news for all the local residents that have worked hard to make our water a little safer, but there is still much more that needs to be done to make our water, air and families healthy. Every victory for our most precious resource, water, is a reason to celebrate.”

Department of Mines, Minerals and Energy spokesman Mike Abbott said selenium wasn’t a known environmental issue within Virginia coal mining operations when his agency gave the 1,340-acre mine a permit to discharge pollutants in 2000. A&G told the state at the time that it didn’t expect the Kelly Branch mine to generate any selenium, the ruling said.

But more recently, the state mining agency directed the company to test for selenium and the company found it, Abbott said. The state then asked the company to bring its selenium releases within the legal limit, and the company was in the process of working on that in 2011, Abbott said.

“One could say the process was under way to address the selenium issue here,” Abbott said.

In September 2011, Southern Appalachian Mountain Stewards complained to the state mining agency about the mine. The group said water it sampled from near the Kelly Branch mine tested positive for excessive amounts of selenium, Abbott said.

When the state tested water on mine property, the level was 13 parts per billion, while the maximum concentration allowed is five parts per billion, Abbott said.

Abbott said he did not know what the selenium level is now or whether it has reached acceptable levels.

In spite of the state’s action on the issue, Southern Appalachian Mountain Stewards took its campaign to court by filing a lawsuit in May 2012 with other environmental groups. Appalachian Voice, with offices in Boone, N.C., and Charlottesville, focuses on water quality and coal issues. Sierra Club is a national environmental group with a Virginia chapter.

Jones, whose ruling ran 19 pages, said he will look at the upcoming rounds of test data and use it to “assess the seriousness of A&G’s violations for the purpose of determining civil penalties” at a date to be determined.

Barbara Williamson, a member of the Southern Appalachian board of directors, said in a release: “A&G Coal Corporation has had a long standing careless approach to protecting water sources in southwest Virginia. This ruling has put A&G on notice that their cavalier attitude toward protecting the quality of our water was not acceptable.”

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