In November 2006, environmental group lawyers warned Hobet Mining that its Boone County operations were dumping too much selenium into tributaries of the Mud River.
In November 2006, environmental group lawyers warned Hobet Mining that its Boone County operations were dumping too much selenium into tributaries of the Mud River.
Lawyers Derek Teaney and Joe Lovett told Hobet that the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition planned to sue the company over its alleged permit violations.
The formal notice of intent to sue gave the company 60 days to fix its pollution problems. Federal law requires citizens to give companies and regulators such notices before filing a Clean Water Act lawsuit.
On Jan. 12, 2007 - the 60th day after the Hobet notice - the West Virginia Department of Environmental Protection filed its own selenium lawsuit against Hobet Mining.
Under the law, if DEP "has commenced and is diligently prosecuting" its own case, the citizen groups are prohibited from suing Hobet.
Randy Huffman, director of the DEP Division of Mining and Reclamation, said that his staff attorneys aren't following environmental group lawyers around.
"It's my understanding that we're supposed to be enforcing the law and enforcing the standards in those permits, and that's the reason for taking the action we've taken," Huffman said.
But the January 2007 lawsuit isn't the only time that DEP officials have stepped in and effectively blocked a citizen effort to force coal companies to reduce selenium pollution.
Three months after that suit, in March 2007, Teaney and Lovett filed more legal notices. This time, they targeted six more permits, including four new permits that weren't part of their initial lawsuit notices.
By mid-May, DEP lawyer Tom Clarke had sought to amend his agency's pending suit in Boone Circuit Court, to add the new permits targeted by the environmentalists.
Since that May 18, 2007, filing, DEP officials have taken no action in the case. They haven't asked for an injunction. They haven't taken depositions or sought records from Hobet Mining.
DEP has done nothing to move the suit forward toward a court order that would force Hobet to comply with its permit limits for selenium, court records show.
So last week, Teaney and Lovett filed their own lawsuit against Hobet. They argue that DEP has dropped the ball, and that a judge should let citizens seek their own injunction against the coal company.
In November 2006, environmental group lawyers warned Hobet Mining that its Boone County operations were dumping too much selenium into tributaries of the Mud River.
Lawyers Derek Teaney and Joe Lovett told Hobet that the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition planned to sue the company over its alleged permit violations.
The formal notice of intent to sue gave the company 60 days to fix its pollution problems. Federal law requires citizens to give companies and regulators such notices before filing a Clean Water Act lawsuit.
On Jan. 12, 2007 - the 60th day after the Hobet notice - the West Virginia Department of Environmental Protection filed its own selenium lawsuit against Hobet Mining.
Under the law, if DEP "has commenced and is diligently prosecuting" its own case, the citizen groups are prohibited from suing Hobet.
Randy Huffman, director of the DEP Division of Mining and Reclamation, said that his staff attorneys aren't following environmental group lawyers around.
"It's my understanding that we're supposed to be enforcing the law and enforcing the standards in those permits, and that's the reason for taking the action we've taken," Huffman said.
But the January 2007 lawsuit isn't the only time that DEP officials have stepped in and effectively blocked a citizen effort to force coal companies to reduce selenium pollution.
Three months after that suit, in March 2007, Teaney and Lovett filed more legal notices. This time, they targeted six more permits, including four new permits that weren't part of their initial lawsuit notices.
By mid-May, DEP lawyer Tom Clarke had sought to amend his agency's pending suit in Boone Circuit Court, to add the new permits targeted by the environmentalists.
Since that May 18, 2007, filing, DEP officials have taken no action in the case. They haven't asked for an injunction. They haven't taken depositions or sought records from Hobet Mining.
DEP has done nothing to move the suit forward toward a court order that would force Hobet to comply with its permit limits for selenium, court records show.
So last week, Teaney and Lovett filed their own lawsuit against Hobet. They argue that DEP has dropped the ball, and that a judge should let citizens seek their own injunction against the coal company.
"WVDEP's filing of the Boone County action must be seen in light of the agency's ongoing collusion with the coal industry to undermine the requirements of the Clean Water Act in West Virginia," Teaney and Lovett wrote.
"In fact, WVDEP brought the Boone County action not to require Hobet to comply with the Clean Water Act or the Surface Mining Control and Reclamation Act, but to protect Hobet from [the citizen groups'] attempt to enforce the permit in federal court."
Last week, Huffman said he couldn't explain why his agency has not moved forward its lawsuit against Hobet. Huffman said he had instructed agency lawyers to "pick up the pace."
"We should have been moving faster on this than we have been," Huffman said.
The wrangling over DEP's Hobet lawsuit is part of a broader battle between agency officials, the coal industry and citizen groups over selenium pollution.
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 humans, it can cause hair loss, nail brittleness and neurological problems such as numbness. In aquatic life, very small amounts of selenium have been found to cause reproductive problems.
In 2003, a broad federal government study of mountaintop removal coal mining found repeated violations of water quality limits for selenium in the water downstream from mining operations. The following year, a 2004 report from the U.S. Fish and Wildlife Service found troubling levels of selenium in fish downstream from large surface mines.
Coal industry lobbyists tried - so far unsuccessfully - to persuade lawmakers and the DEP to relax West Virginia's water quality rules for selenium.
The Manchin administration moved instead to give nearly 100 coal operators three more years to fix violations of the state's selenium limits. Environmental groups are challenging about two dozen of those DEP compliance orders before the state Environmental Quality Board.
In their new federal court suit, Teaney and Lovett noted the DEP didn't review coal company water pollution discharge reports for nearly five years, a move that allowed the industry to avoid thousands of citations and fines.
"As a result, WVDEP has abdicated its duties to administer the Clean Water Act and has essentially stopped assessing civil penalties against coal operators for violating the act," Teaney and Lovett wrote. "WVDEP's Boone County action goes even further than its previous practice of turning a blind eye to violations of the Clean Water Act; the Boone County action was an active attempt to protect Hobet from being compelled to comply with the CWA by plaintiffs.
"This attempt to protect the coal industry, which it is charged with regulating, is the logical conclusion of the WVDEP's general failure to enforce the Clean Water Act against this industry."
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
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