Winds of Change Newsletter, September 2010 See sidebar for table of contents
Judge Says Patriot Coal, DEP Failing to Curb Selenium Violations
by Dianne Bady
The widespread violations of selenium water limits downstream of valley fills are an Achilles heel for the mountaintop removal industry.
For example, at Patriot Coals 25-square-mile Hobet mountaintop removal complex in Lincoln and Boone counties, scientists have found fish with deformed spines and with two eyes on one side of the head. Experts cited high selenium levels as the cause of these deformities. Excessive selenium intake also endangers human health.
In 2003, the federal governments draft Environmental Impact Statement on MTR turned up violations of selenium water standards. In 2004, a U.S. Fish and Wildlife Service report also documented selenium problems. A summary of some recent selenium legal actions:
2007: OVEC et al. vs. Apogee Coal (Patriot subsidiary)
We sued for violations of selenium water limits on one Apogee MTR permit and several Hobet MTR permits, asking for an injunction to stop this illegal pollution. Joining OVEC in this suit was the West Virginia Highlands Conservancy.
Our litigation against Apogee resulted in several agreements by Apogee, including that Apogee would comply with the relevant selenium limits no later than April 2010.
In the meantime, Apogee would conduct pilot treatments to reduce selenium to legal limits. Five status reports were due on specific dates to Judge Robert Chambers in the Huntington District Federal Court in order to update the court on the required progress.
2008: OVEC et al. vs. Hobet
OVEC and the West Virginia Highlands Conservancy sued Hobet again in Federal Court, arguing that after DEP filed suit against Hobet in 2007, DEP let the case languish for over a year, taking no action whatsoever.
We believe that DEPs 2007 legal action against Hobet was actually a way for DEP to allow Hobet to continue their illegal pollution, by protecting the company from our lawsuit.
We argued to Judge Chambers that DEPs litigation against Hobet did not qualify as diligent prosecution, and the court agreed to hear our case.
However, several months later, DEP entered into a consent order with Hobet that required Hobet to pay over $4 million in penalties and use more than half of this to help fund projects to fix the selenium problems.
Our 2008 suit against Hobet was ultimately dismissed because the court found there was no realistic prospect that the violations would continue under DEPs new legal action.
2009: OVEC et al. vs. Hobet (again)
In October 2009, OVEC and the West Virginia Highlands Conservancy filed another lawsuit against Hobet, this time for its Hobet 22 facility on Berry Branch in Lincoln County.
The Hobet 22 mine was an extension of the massive Hobet 21 facility, and Hobet opened the mine knowing full well that it could create perpetual selenium discharges.
On June 14, 2010, Judge Chambers ruled in our favor in the Hobet 22 suit, saying that DEPs efforts to allow Hobet more time to comply "look more like stalling techniques than like real attempts at compliance."
Judge Chambers scheduled August hearings to determine the scope of a court order against Hobet and to consider our request to find Apogee Coal in contempt of court for failing to comply with the court ordered deadlines set in 2007.
After a three-day trial, Judge Chambers ordered the parties to negotiate to determine if the matter could be settled, and set closing arguments for August 30, 2010.
As of this writing, negotiations towards a final settlement are ongoing.