Ohio Valley Environmental Coalition
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December 2010

Celebrating Victory: Patriot Coal Under Court Order to Reduce Selenium Discharges; Precedent-Setting Federal Ruling Could Bring More Pollution Reduction Orders Throughout WV
Members’ and Supporters’ Picnic Draws Enthusiastic Crowd  
Study of Energy Expansion Fund Mandated by WV Legislature
EPA’s Region III Wants Historic Veto of Spruce No. 1 Mine Permit
Motion to Intervene: Defending EPA from Mining Industry Interference
Shale Shocked: Groups Meet with DEP Over Fracking
DEP Says Major Plant A Minor Source of Air Pollution
End-of-Year Reminder
New Marsh Fork Elementary School Coming!
A Decade Later Slurry Disaster Still Impacts People’s Property and Lives
Join SSP’s Annual Legislative Kickoff Event
Sludge Safety Project Works on Your LOCAL Water Quality Issues
Eating For OVEC and Raising $$$
Bo Webb wins Purpose Prize
Seeking Rest for the Dead and Justice for the Living
Consol Settles With Fayette Group, Will Strengthen Pollution Controls
Living Below Mountaintop Removal, Dealing with DEP
Appalachia Rising Elevates the Movement to End MTR; OVEC Members Among Those Arrested In Front of the White House
Appalachia Rising
Taking the Word Right to the President
Poet and OVEC Member Bob Henry Baber
WV Council of Churches Holds Annual Dinner For Unity; Mattea Attends
Lindytown Almost Totally Gone
Coal Companies Ask WV, Feds to Change Selenium Limits
Human-Powered Transportation: It’s Critical, Political - And A Lot Healthier For You
Manchin, Beshear, Buddy Up With National Mining Assoc.
Scholars and Artists Launch National Campaign to Save Blair Mountain, Labor History Landmark, From Imminent Destruction
The Science is In, MTR Should Be Out
Update on Efforts to Preserve Blair Mountain
Imagine if Renewable Energy Tech Got The Same Treatment…
Wood Co. Commission Learns About MTR Impacts
Burning The Future goes On Tour to Eastern Europe and China
A Letter to the EPA from an OVEC Member
Sen. Rockefeller Sticking His Head in “Clean” Coal Sand
Outrageous Pork - You Betcha!
Bees’ Buzz: Mega-Poster That Shows True Cost of Coal Complete
Security on Kayford Mountain Improved After Incident 
Mountain Justice Summit on Kayford Includes Special Tree Planting

For viewing the PDF version of the newsletter

Winds of Change Newsletter, December 2010     See sidebar for table of contents

Celebrating Victory: Patriot Coal Under Court Order to Reduce Selenium Discharges; Precedent-Setting Federal Ruling Could Bring More Pollution Reduction Orders Throughout WV

On Sept. 1, 2010, after a four-day trial, US District Judge Robert C. Chambers ordered Patriot Coal subsidiary Apogee to install a fluidized bed reactor system to reduce selenium at three water outfalls.

Judge Chambers ordered the company to post a $45 million Irrevocable Letter of Credit to the federal court to pay for this system, as well as a treatment system for one outfall at Patriots Hobet 22 subsidiary in Lincoln County. Selenium compliance must be achieved no later than March 1, 2013.

Judge Chambers also declared Patriot Coal in contempt of court for its failure to comply with the terms of an earlier order he issued to the company to investigate and test selenium treatment systems.

In order to monitor, supervise and direct Apogees compliance, Judge Chambers appointed a Special Master, James H. Kyles, who was recommended by one of our expert witnesses. Judge Chambers ordered Apogee to report to the Court every 30 days on its progress and to develop a written timetable to design, construct and install its pending treatment system. The Special Master appointment is crucial, since Apogee did not obey orders, which resulted in the contempt charge.

This historic ruling sets important precedent for other coal companies that they can and must treat their mining waste discharges to lessen the pollution of nearby streams and communities. State regulators are on notice, too, that they must cease continually granting pollution-permit compliance extensions.

"Lets hope the coal companies finally realize that they should just leave high-selenium coal in the ground," said OVEC co-director Dianne Bady. "I hope this ruling indicates to the coal industry and the regulatory agencies that mining in high-selenium seams is not economically feasible."

According to Margaret Janes, senior policy analyst for the Appalachian Center for the Economy and the Environment, "This will be the first time selenium is treated in West Virginia, and it should be a lesson to both the DEP and the coal industry that such treatment is mandatory. The results of this case clearly show that the cost of mining high-selenium coal seams exceeds the profits."

After the judge made these orders, Patriot Coal legally appealed Judge Chambers ruling to the 4th Circuit Court of Appeals.

On October 8, OVEC et. al. reached a settlement agreement with Patriot Coal, whereby Patriot will drop its appeal of Judge Chambers ruling. This agreement does NOT affect our right to legally challenge any Patriot MTR permits that may be granted.

OVEC et. al. agreed not to take any other Patriot mines to court over selenium issues before April 3, 2012, provided that Apogee constructs the selenium treatment system on schedule. (We have already filed suit against several other Patriot surface mines for their illegal selenium discharges.) The settlement does NOT prohibit OVEC et al. from issuing a notice of intent to sue Patriot, so long as any such cases do not go to court before April 3, 2012.

As part of our settlement, Patriot agreed to refrain from surface mining any selenium coal seams that are not currently permitted. We retain the right to legally challenge any new permits that are granted to Patriot in selenium-bearing coal seams.

OVEC et. al. agreed not to file any new legal actions regarding Apogees violation of selenium limits at the outfalls over which we sued, prior to March 1, 2013 (Judge Chambers deadline for both Apogees selenium treatment system installation and compliance with selenium limits).

The settlement with Patriot does not impede our legal work. We continue to move forward in bringing MTR companies into compliance with selenium limits. In June, we filed lawsuits against Massey and Arch Coal subsidiaries, including Masseys Twilight surface mine; and we are working to bring these cases to court.

Janes group and Public Justice are representing OVEC, as well as the WV Highlands Conservancy, Coal River Mountain Watch and Sierra Club on a number of selenium cases.


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