Judge Orders End to Selenium Violations at Logan MTR Mine

by Ken Ward Jr., Charleston Gazette, June 1, 2008

A federal judge has, for the first time, ordered a West Virginia coal operator to stop discharging illegal levels of the toxic mineral selenium into state streams. U.S. District Judge Robert C. Chambers gave Apogee Coal Co. four months to clean up its selenium discharges in Logan County.

Chambers gave Apogee, an arm of Magnum Coal, (until July 24) to submit a plan containing a compliance schedule. The company has 90 days after that to implement the plan or show the judge why it cannot do so.

"In passing the (Clean Water Act) Congress made a clear policy choice in favor of environmental protection," Chambers wrote in a 20-page decision. The judge added, "There is no exception to permit compliance because such compliance is expensive."

Chambers issued his ruling on May 27 in one of two lawsuits environmental group lawyers have filed against Magnum Coal operations over the companys repeated selenium discharge violations.

The Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy filed citizen suits against mine operators after inaction by the state Department of Environmental Protection to stop the violations.

"DEP has been trying to get out of actually enforcing selenium limits in all of these permits," said Cindy Rank, mining chairwoman for the Highlands Conservancy. "We have to be grateful to Judge Chambers that he recognized that was just not adequate."

Selenium, a naturally occurring element found in many rocks and soils, is an antioxidant that is needed in very small amounts for good health. But in slightly larger amounts, selenium can be highly toxic In 2003, a broad federal government study of mountaintop removal coal mining found repeated violations of water-quality limits for selenium in water downstream from mining operations.

The following year, a report from the U.S. Fish and Wildlife Service found troubling levels of selenium in fish downstream from large surface mines.

Coal industry lobbyists have tried - so far unsuccessfully - to persuade lawmakers and the DEP to relax West Virginias selenium limits.

The Manchin administration moved instead to give nearly 100 coal operations three more years to fix violations of their selenium permit limits. Environmental groups are challenging about two dozen of those DEP compliance orders before the state Environmental Quality Board.

In a related case (filed by OVEC and West Virginia Highlands Conservancy) pending before Chambers, selenium expert Dennis Lemly has warned that pollution from another Magnum operation is dangerously poisoning Mud River fish, leaving some with serious deformities.

Fish samples taken by state officials showed some specimens with two eyes on one side of the head, and others with curved spines, according to a report filed by Lemly last month.