According to state legal journal the West Virginia Record, the Sierra Club, the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy issued their complaint on April 2 in US District Court for the Southern District of West Virginia in Huntington.
According to the filing, the journal said, Bandmill has a permit to regulate water pollution from its Tower Mountain surface operation and subsequently constructed valley fills 1R and 1F in the Burgess Branch of Right Hand Fork of Rum Creek on the Guyandotte River.
The groups said the waters are navigable and Bandmill constructed pond 1 of the Tower mine in Burgess Branch to treat discharges from both valley fills.
The defendant’s permit authorizes it to discharge into Burgess Branch of the Guyandotte River from pond 1 through outfall 001.
However, according to the complaint, sampling of the water by the West Virginia Department of Environmental Protection’s Watershed Assessment Branch on June 15, 2011 at Burgess Branch revealed a higher than allowed selenium concentration.
The environmentalists have claimed that because the selenium concentration well downstream of the valley fills exceeded the requirement for classification as acute, both fills were discharging selenium.
Therefore, the groups said in the suit, Bandmill was discharging selenium directly without a permit which is a violation of the Clean Water Act.
Additionally, the Record notes, Bandmill’s permit does not authorize selenium discharge from valley fill 1R or valley fill 1L as required for legal discharge under the Clean Water Act.
The suit’s plaintiffs have also made claims that Bandmill is continuing the practice via ongoing selenium discharges because no significant action has yet been taken to eradicate the problem.
The environmentalists are seeking a court order of violation; civil penalties up to $37,500 per day for each Clean Water Act violation; monitoring and sampling by the company; and the remedy and repair of the contamination while restoring the environment.
The plaintiffs in the case, known as 2:13-cv-06870, are being represented by Derek Teaney and Joseph Lovett of Appalachian Mountain Advocates.
