The Sierra Club and West Virginia Highlands Conservancy, both represented by Public Justice's Jim Hecker, have entered into a settlement with Fola Coal Company. It will require Fola, a subsidiary of CONSOL Energy, to clean up pollution in Boardtree Branch, a tributary of Twentymile Creek (pictured) in Nicholas County, W.Va.

According to the West Virginia Department of Environmental Protection (WVDEP), Boardtree Branch has become "biologically impaired" as a result of toxic runoff from Fola's Surface Mine No. 3, a mountaintop removal coal mine that spans two square miles and is situated above the stream.

The settlement resolves a lawsuit that was brought after Fola's own monitoring data showed that Boardtree Branch was toxic to aquatic life and contained levels of electrical conductivity (a measure of impurities in water) up to ten times the benchmark for biological health.

This settlement marks the first time that such monitoring results have been used to establish violations of West Virginia's narrative water quality standards. It also sets a precedent because many other mines in Appalachia have the same problem: the EPA recently found that nine out of every ten streams located downstream from surface coal mining operations are biologically impaired.

Under the settlement, Fola must restore the stream to a healthy state. If it doesn't, the settlement stipulates that the coal company will have to install an expensive system to treat the water. The cleanup will be overseen by an independent aquatic ecologist and an independent engineer. The settlement also requires Fola to pay $200,000 to a land trust to support sustainable development and land use planning.

As far back as 2008, the WVDEP classified Boardtree Branch as "biologically impaired," but, because of the coal industry's influence in the state, the WVDEP did not compel Fola to clean up the stream.

The full settlement, which awaits final approval by the court, is available here. For further detail about the settlement, see the Associated Press/Charleston Daily Mail story and Charleston Gazette blog post.

In addition to Hecker and Public Justice, the Sierra Club and West Virginia Highlands Conservancy were represented by Joe Lovett and Derek Teaney of Appalachian Mountain Advocates.