Judge in Historic Ruling Says Drummond Violating Clean Water Act Because of Ongoing Discharge From Closed Mine

Water testing on the Locust Fork near the old Maxine mine. (Source: Nelson Brooke, Black Warrior Riverkeeper)

The acid coal mine drainage at Maxine Mine on the Locust Fork is ugly, with discordant orange, yellow, red and purple hues that contrast with verdant spring growth on adjacent riverbanks and bluffs.

Nearby residents of this Black Warrior River tributary in north Jefferson County, close to the community of Praco on Flat Top Road, call the abandoned mine “a mess,” a place devoid of fish and most other aquatic life and given a wide berth by boaters and swimmers. It’s where algae blooms proliferate in a slough rife with sediment washing from the mountain of mine waste that has accumulated since the early 1950s.

And it’s a site that made Alabama history May 7 when a federal judge ruled that its owner, Drummond Company, was in violation of the U.S. Clean Water Act for continuously polluting the Locust Fork with acid drainage. In a suit brought by nonprofit Black Warrior Riverkeeper, U.S. District Judge Abdul Kallon issued a summary judgment against Drummond, dismissing the coal company’s assertion that the law does not apply to pollution from waste after mine operations ended.

It was the first time the federal act was used to successfully sue the owner of an abandoned mine for polluting an Alabama waterway.

Drummond did not answer email and telephone requests to comment on the decision.

According to the U.S. Environmental Protection Agency, acid mine drainage is formed when pyrite, an iron sulfide, is exposed and reacts with air and water to form sulfuric acid and dissolved iron. The iron and other heavy metals cause the many-colored sediments in waters containing mine drainage. The acid further dissolves copper, lead, mercury and other heavy metals into ground or surface water.

The drainage can contaminate drinking water, disrupt growth and reproduction of aquatic plants and animals, and corrode infrastructure such as bridges.

How the pollution would be remedied is still up in the air for Kallon to determine later in a nonjury trial.

Possible Remedies

The Riverkeeper group said it preferred the mining waste be excavated and removed to a lined landfill and the site restored. “In the long run, we believe that remedy is the most appropriate, efficient and cost effective,” said attorney Eva Dillard.

Other potential remedies include requiring Drummond to obtain a permit under the Clean Water Act’s National Pollutant Discharge Elimination System to limit the amount of pollutants flowing from the site, Dillard said.

“At a minimum, this would likely require Drummond to stabilize the waste pile, channel and collect runoff, then treat the water until it can meet the permit limits,” she said. “Under this remedy, Drummond would have to actively manage the site for many, many years.”

Other liability claims brought in the suit against Drummond were not immediately resolved. They involve disputed facts that Kallon said must be heard later at trial. Among them is whether an intermittently flowing stream (called Tributary 1) that was filled in with mine waste, as well as two drainage ditches a previous mine owner constructed to carry wastewater to the Locust Fork, qualify as Waters of the U.S. under the Clean Water Act.

To prevail, the judge stated, Black Warrior Riverkeeper must show that pollution was discharged to a WOTUS. Drummond conceded that the Locust Fork is a WOTUS, but disputed whether the stream and the ditches would qualify.

Kallon postponed the trial until resolution of an intensely watched case (Hawaii Wildlife Fund v. County of Maui, Hawaii) the U.S. Supreme Court has agreed to hear later this year. That case will decide whether the point source discharge of pollutants to a WOTUS through hydrologically connected groundwater requires a permit under the Clean Water Act.

One of Riverkeeper’s claims is that Drummond is discharging pollution to waters of the U.S. via hydrologically connected groundwater that is moving through the mine waste left at the site.

If the Supreme Court hears the Maui case in the fall, as expected, a decision would likely come by next spring, and the Maxine Mine trial could begin sometime after that, Dillard said.

It’s possible, however, that parties in Maui could settle their case in the meantime and the Maxine trial could commence earlier, she added.

Black Warrior Riverkeeper is represented in the Maxine Mine case by the Southern Environmental Law Center, with offices in Birmingham, and by Public Justice. Both are nonprofit organizations.

Dillard said Riverkeeper Nelson Brooke began documenting pollution at the mine more than a decade ago and called it one of the worst polluted sites in his experience.

Maxine mine is on the Locust Fork on the Black Warrior River (Google maps)

“We strongly wanted to take on the case then, but because it’s an enormous complicated undertaking, we first tried to get regulatory agencies to take an interest in the site. We asked for help and advice, but that didn’t really work out; nobody was interested,” she said.

“Once we realized those channels were not going to be productive, we went looking for partners, since our little, four-person organization couldn’t do it alone. We had to have help and resources of national law firms, and were fortunate that both SELC and Public Justice agreed to help with it,“ she said.

“It took a year after that to put together the case and file it.”

She said the summary judgment puts owners of abandoned mine lands on notice that they might have some responsibility for cleaning them up under the Clean Water Act.

“This was pretty well settled (elsewhere), but nobody had ever brought a case in Alabama, where there are easily hundreds of abandoned mines,” she said.

66-Year Legacy

According to court documents, the Maxine Mine began operations in 1953 as an underground coal mine owned by Alabama By-Products Corp. to supply Alabama, Georgia and Gulf power companies. It is located near the north Jefferson community of Praco. Mining refuse was piled high on a ridge adjacent to the Locust Fork. It contains coarse rock refuse, coal fragments, sandstone, shale and washer rock.

The state’s surface mining reclamation authority notified ABC it was discharging acid mine drainage from the waste pile in 1979, after which the company constructed basins and dams over an existing stream that as far back as 1946 flowed into a slough of the river.

Mining there ceased in September 1983. ABC then merged with Drummond, making Drummond responsible for the mine.

The River ‘Flows Through My Veins:’ Voices From the Locust Fork Tributary of the Black Warrior River

Funding to Make Abandoned Coal Mines Safer Could Disappear Soon