Our Cases

Protecting water resources from toxic coal runoff

Many people associate the Potomac River with our nation's capital. But the "Nation's River" reaches far beyond Washington, D.C., and its watershed spans several states, supplying drinking water to more than 6 million people and supporting wildlife, forests, and wetlands throughout the Mid-Atlantic region. 

To protect the people, animals, and plants that rely on this iconic waterway, the Environmental Integrity Project (EIP), a Chesapeake Accountability Project partner, initiated legal action with Appalachian Mountain Advocates on behalf of the Potomac Riverkeepers Network (PRKN) to force the cleanup of a coal operation on the river's North Branch. 

EIP and its partners notified the D. & L. Coal Company in July 2020 that it intended to sue over water pollution from giant heaps of coal, which is a prerequisite to initiating a formal  citizen suit under federal environmental laws, including the Clean Water Act. At the time, coal residue flowed from piles as high as 20 feet into ditches that emptied into the Upper Potomac River in West Virginia. 

To safeguard people's health and the environment, EIP and its partners demanded that D. & L. monitor water quality at its Mineral County site in West Virginia; work with state regulators to set and meet protective water quality standards; and prevent seepage and runoff from polluting the Upper Potomac. 

In light of the notice of intent to sue D. & L., the company cleaned up the coal storage site, removing coal piles and equipment and capping the area with limestone. EIP and PRKN are confident that the site will not continue to pollute the river and believe the site is cleaner than it has been in decades. 

D. & L. also supplied coal to Luke Paper Mill, a Maryland facility that shut down in 2019 but continued to leak toxic "black liquor" into the river. Black liquor can kill aquatic animals, and mercury and arsenic found in water samples near the site are linked to human health problems such as cancer and neurological damage. EIP and the PRKN are engaged in separate citizen suit litigation over the water pollution caused by the former paper mill, now owned by Verso Corporation.

On April 1, 2021, the organizations, the State of Maryland, and Verso entered a federal consent decree that will require Verso to investigate and identify the sources and the extent of contamination at the mill. The company must also develop and implement a comprehensive plan to clean up all the contamination so that public health and the environment, particularly the river, are protected. Verso is also required to pump and treat contaminated groundwater, close a coal ash waste lagoon, and conduct monthly water quality sampling in the river and groundwater for at least three years following all clean-up measures to make sure that pollution from the site is no longer harming the river.

This story will be updated as new developments occur.

Enforcing the Chesapeake Bay cleanup agreement

Robert Whitescarver, a former representative of the Natural Resource Conservation Service, spent his career educating farmers on the benefits of protecting farmland and improving water quality in local streams and rivers. Now, he and his wife, Jeanne Hoffman, raise livestock on a farm in rural Virginia. They're passionate about clean water - the lifeblood of the economy, culture, and way of life throughout the Chesapeake Bay watershed. 

The health of the Chesapeake Bay is crucial to the people, animals, and plants that call its watershed home. It supports commercial fishing and other aspects of the regional economy, as well as wildlife habitats, recreation, and more - and it's a source of great natural beauty and local pride.

 A decade ago, the U.S. Environmental Protection Agency forged an agreement with Virginia and other states in the region to clean up the Bay, which was and continues to be polluted by runoff from agriculture, construction sites, and industrial facilities. Known as the Chesapeake Bay Total Maximum Daily Load (TMDL), the agreement -- aka the "pollution diet" or "Clean Water Blueprint" -- requires watershed states to reduce nitrogen, phosphorus, and sediment pollution. It aims to improve water quality, restore ecosystems and natural habitats, and reduce "dead zones" that kill marine life  and decimate commercial and charter fishing in the estuary. Ultimately, the goal is to protect public and environmental health. 

The problem: Several states have not met their pollution reduction commitments, and the EPA has done little to enforce the agreement. 

In September 2020, the Chesapeake Bay Foundation (CBF), a Chesapeake Accountability Project partner, sued the EPA for failing to adequately enforce the cleanup agreement or hold Pennsylvania and New York accountable for their share of pollution. Whitescarver and Hoffman joined the suit, along with Anne Arundel County, Maryland, and the Maryland Watermen's Association. Attorneys general from Maryland, Virginia, Delaware, and Washington, D.C., meanwhile, filed a related but separate suit.

"All jurisdictions need to do their fair share," Whitescarver said in a CBF statement. "The efforts that Virginia and Maryland farmers have put into sustainable farming are harmed by EPA's failure to require all jurisdictions to meet the commitments they agreed to."

Chesapeake Bay Foundation President William Baker added that federal law requires the EPA to ensure that states design and implement plans to meet their clean water commitments. "After years of failed voluntary efforts, this oversight and accountability is critical," he said in the statement. "Taking the actions necessary to reduce pollution will support local businesses, create jobs, and provide additional environmental and public health benefits."

Kristin Reilly, director of the Choose Clean Water Coalition, another partner of the Chesapeake Accountability Project, agreed. "To reduce pollution entering our waterways from farmland, city streets, and suburban neighborhoods, we need a coordinated and collaborative effort at the local, state, and federal level," she said. "This is where the full implementation of the Chesapeake Bay TMDL is critical." 

EPA has moved to dismiss the two complaints for lack of what's known as subject matter jurisdiction. In addition, the Department of Justice (DOJ) asked the court that it not be required to provide an index of the administrative record supporting EPA's decision to accept Pennsylvania and New York's Phase III watershed implementation plans. CBF, Whitescarver, and Hoffman (the plaintiffs in the case) objected to DOJ's motion and argued that they could not fully respond without a record. The court agreed and has given EPA until April 27 to provide that record. The plaintiffs may then either object to the record as incomplete or respond to the motion to dismiss by June 11. The government then has until July 12 to respond, and the plaintiffs may file a reply by August 10.

This story will be updated as new developments occur.