CHARLESTON, W.Va. -- A federal judge has declined to hold Apogee Coal Co. in contempt of court for continuing to stall the cleanup of selenium pollution from a mountaintop removal mine in Logan County.
CHARLESTON, W.Va. -- A federal judge has declined to hold Apogee Coal Co. in contempt of court for continuing to stall the cleanup of selenium pollution from a mountaintop removal mine in Logan County.
U.S. District Judge Robert C. Chambers turned down the contempt motion filed against Apogee by lawyers for the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy.
But Chambers also indicated he is running out of patience with Apogee, and would not be happy if the Patriot Coal subsidiary does not live up to its promises to comply with previous court orders.
"Thus far the court has been lenient and has allowed Apogee to proceed at its own discretion and pace," Chambers wrote in a five-page ruling issued Monday.
"Having given Apogee the time and flexibility to obtain consulting assistance, review and investigate alternative treatment options, and choose its own course for compliance, the court will hold Apogee responsible for any failure to achieve full compliance with the installation and compliance deadlines," the judge wrote.
Chambers refused to unseal previous coal company consultant reports that outline various selenium treatment options, but listed a secrecy order for future such reports submitted to the court.
Environmental group lawyers are trying to force Apogee to clean up selenium violations that state regulators have allowed to continue unabated.
Selenium, a naturally occurring element found in many rocks and soils, is an antioxidant in very small amounts for good health. But in slightly larger amounts, selenium can be highly toxic. In aquatic life, very tiny amounts of selenium have been found to cause reproductive problems.
In 2003, a broad federal government study of mountaintop removal found repeated violations of water-quality limits for selenium in water downstream from mining operations. Coal lobbyists have tried - so far unsuccessfully - to persuade lawmakers and the state Department of Environmental Protection - to relax West Virginia's selenium limits. Instead, the Manchin administration has been trying to give coal operators more time to fix their violations, and environmental groups have been fighting those delays.
CHARLESTON, W.Va. -- A federal judge has declined to hold Apogee Coal Co. in contempt of court for continuing to stall the cleanup of selenium pollution from a mountaintop removal mine in Logan County.
U.S. District Judge Robert C. Chambers turned down the contempt motion filed against Apogee by lawyers for the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy.
But Chambers also indicated he is running out of patience with Apogee, and would not be happy if the Patriot Coal subsidiary does not live up to its promises to comply with previous court orders.
"Thus far the court has been lenient and has allowed Apogee to proceed at its own discretion and pace," Chambers wrote in a five-page ruling issued Monday.
"Having given Apogee the time and flexibility to obtain consulting assistance, review and investigate alternative treatment options, and choose its own course for compliance, the court will hold Apogee responsible for any failure to achieve full compliance with the installation and compliance deadlines," the judge wrote.
Chambers refused to unseal previous coal company consultant reports that outline various selenium treatment options, but listed a secrecy order for future such reports submitted to the court.
Environmental group lawyers are trying to force Apogee to clean up selenium violations that state regulators have allowed to continue unabated.
Selenium, a naturally occurring element found in many rocks and soils, is an antioxidant in very small amounts for good health. But in slightly larger amounts, selenium can be highly toxic. In aquatic life, very tiny amounts of selenium have been found to cause reproductive problems.
In 2003, a broad federal government study of mountaintop removal found repeated violations of water-quality limits for selenium in water downstream from mining operations. Coal lobbyists have tried - so far unsuccessfully - to persuade lawmakers and the state Department of Environmental Protection - to relax West Virginia's selenium limits. Instead, the Manchin administration has been trying to give coal operators more time to fix their violations, and environmental groups have been fighting those delays.
As part of a separate case pending before Chambers, the nation's top expert on selenium water pollution, Dennis Lemley has warned that discharges from a Magnum Coal operation is dangerously poisoning Mud River fish, pushing the ecosystem to the "brink of a major toxic event."
In late May, Chambers gave Apogee 30 days to submit a compliance plan and another 90 days after that to implement its plan. Later, after a July hearing, Chambers backed off that timeline. He gave the company until July 24 to submit a new timetable. In August, the judge gave the company until May 31, 2009 to install treatment systems and until June 30, 2009, to come into compliance with its permit limits.
Last month, environmental group lawyers Derek Teaney and Jim Hecker argued that Apogee was in contempt for not providing interim benchmarks to show its progress. They said the company was not on track to meet the court's deadlines. Chambers noted that, in response, coal company lawyers filed another general monthly progress report without including any benchmarks or deadlines.
The judge concluded, "It will be difficult, but not impossible, for Apogee to meet the final compliance deadlines imposed by the court.
"Since any delay in development may make it impossible to meet the final compliance date, the court will closely scrutinize the remainder of the process," Chambers wrote.
Reach Ken Ward Jr. at kw...@wvgazette.com or at 304-348-1702.
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