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Ohio Valley Environmental Coalition v. Marfork Coal Co.

ELR Citation: 44 ELR 20093
Nos. 5:12-1464, (S.D.W. Va., 04/24/2014) (Chambers, CJ.)

A district court held a coal company liable under the CWA for discharging excessive amounts of selenium into the waters of West Virginia. Water sampling performed on behalf of an environmental group that filed a citizen suit against the company prove that the company violated West Virginia's water quality standards—and, thus, the company's discharge permits—by exceeding the standards' chronic selenium limitation of 5 parts per billion. The company owns and operates a slurry impoundment that discharges water from an outfall into a stream known as Brushy Fork. The company argued that the group failed to conduct instream sampling from Brushy Fork. But the sampling from the bottom of the outfall's spillway—right before the water hits Brushy Fork’s surface—was sufficient to show a violation because the outfall is the only source of water for Brushy Fork.