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Lawsuits: Reclaimed W.Va. mines still polluting

Vicki Smith, Associated Press

MORGANTOWN, W.Va. (AP) -- Environmental activists say three reclaimed mountaintop removal mining sites are still polluting West Virginia waterways, and they're suing the current landowners in a novel attempt to stop it.

The lawsuits filed in U.S. District Court in Huntington say state and federal regulators are doing nothing to end water pollution from old surface mines after they've been cleaned up, graded and replanted with vegetation, so the landowners must be held accountable.

The litigation signals a new strategy from the environmental community, which has long sued coal companies over pollution but rarely sued after their operations are reclaimed and released from bonding and permit requirements.

Sierra Club attorney Peter Morgan said his group is looking at the "full life cycle" of mines to dispel the myth that they no longer threaten the environment when they're done producing coal.

"The landowners that we've targeted are corporate landowners, so we're hoping they have some influence over the mining companies and the regulators," he said Wednesday. "We're trying to take advantage of their leverage.

"We suspect they don't want this liability identified," he added. "They don't want to be left holding the bag for what the mining operators did."

The West Virginia Coal Association said it was reviewing the litigation and could not immediately comment on its implications.

In the lawsuits, the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Sierra Club allege that runoff from the three sites contains pollutants that violate the federal Clean Water Act.

The cases, filed Friday and late Tuesday, target three landowners:

—The David L. Francis Trust of Huntington owns portions of the former Sprouse Creek West Surface Mine. It was once operated by Rawl Sales & Processing Co., a subsidiary of the former Massey Energy Co.

—Shepard Boone Coal Co. in Huntington owns part of the former Colony Bay Surface Mine. Shepard is a subsidiary of Texas-based Natural Resource Partners.

—Pocahontas Land Corp. of Bluefield owns parts of the former Pounding Mill No. 1 Surface Mine and Surface Mine No. 8. That company is a subsidiary of Virginia-based Norfolk Southern Corp.

None of the defendants immediately commented.

The complaints ask a judge to stop the unpermitted discharges and to fine the defendants $37,500 per day for each violation. They also demand monitoring and sampling programs to gauge the damage that's been done, and restoration programs once that's been determined.

Mountaintop removal mining is a cost-effective but particularly destructive form of strip mining that blasts apart mountain ridge tops to expose multiple seams of coal. Debris is dumped into the valleys below, often covering streams and creating so-called valley fills that remain intact when the mining ends.

Vivian Stockman of the Ohio Valley Environmental Coalition says those valley fills continue to produce tainted runoff.

"The pollution you produce doesn't magically disappear with the wave of a 'reclamation' wand," she said. "What you are left with has been likened to lipstick on a corpse."

The lawsuits say valley fills discharge pollutants including selenium at levels that can harm aquatic life.

Selenium is a naturally occurring element that surface mining can release into waterways. In humans, high-level exposure can damage the kidneys, liver, and central nervous and circulatory systems.

The complaints say the environmental groups gave both the state Department of Environmental Protection and the U.S. Environmental Protection Agency 60 days' notice of their intent to sue, but neither agency attempted to address the violations.

Neither DEP nor EPA immediately commented on the lawsuits, either.