Coal lobbyists have been trying unsuccessfully to weaken the state's requirements, but have persuaded DEP and state lawmakers repeatedly to delay compliance deadlines. The Obama administration's U.S. Environmental Protection Agency is expected to announce a tougher selenium standard.
In the Hobet 21 situation, state regulators initially approved new permits for the operation two years ago without any selenium limits. After citizen groups rushed into court, the company and DEP agreed to add such limits.
But since that August 2008 deal, citizen groups say, Hobet has continued to violate its selenium limits. DEP officials and the company sought more time to comply by adding the permit at issue to a state court settlement that would have set a compliance deadline of July 1, 2012.
DEP was not a party to the lawsuit in federal court, and Hobet lawyers tried to use the company's deal with the state as a defense against the citizen lawsuit. But Chambers said there is "a realistic prospect of non-compliance" because "there is no indication that the WVDEP intends to required Hobet to comply" with the state court settlement agreement.
Patriot Coal officials did not immediately respond to a request for comment, and DEP officials had not yet seen the ruling late Monday afternoon.
Aaron Isherwood, staff attorney for the Sierra Club, said he group was "very pleased" with the judge's decision.
"It's high time that the coal industry cleaned up its act and stopped dumping dangerous levels of selenium into West Virginia waterways," Isherwood said. "Anyone who likes to fish should be very concerned about how the coal industry is polluting rivers with this toxic pollutant, as it is known to cause reproductive failures and deformities in fish and other aquatic species."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.