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New lawsuits target selenium pollution

CHARLESTON, W.Va. -- Environmental groups filed two new major lawsuits Thursday, aimed at forcing the coal industry to stop violations of water-quality limits for toxic selenium.

Lawyers for the Ohio Valley Environmental Coalition and other groups filed the lawsuits in U.S. District Court in Huntington against subsidiaries of Massey Energy and Arch Coal.

The lawsuits target alleged selenium violations at six surface mines in Boone, Logan, Mingo, Kanawha and Raleigh counties.

Citizen groups filed the lawsuits three days after U.S. District Judge Robert C. Chambers issued a ruling that harshly criticized another company, Patriot Coal's Hobet Mining subsidiary, and the West Virginia Department of Environmental Protection for continued delays in stopping selenium violations.

"Hobet's track record of non-compliance and the WVDEP's history of acquiescing to deadline extensions and other modifications to ease permit requirements suggest compliance is not likely without intervention on the part of this court," Chambers wrote in a 55-page opinion issued Monday.

Selenium, a naturally occurring element found in many rocks and soils, is an antioxidant needed in very small amounts for good health. In slightly larger amounts, though, selenium can be toxic. Very small amounts have been found to cause reproductive problems in aquatic life.

In 2003, a broad federal study of mountaintop-removal mining found repeated violations of water-quality limits on selenium. Biologist A. Dennis Lemly, one of the nation's foremost experts on selenium, has said that pollution from the Hobet operation has left the Mud River ecosystem "on the brink of a major toxic event."

Over the past few years, citizen groups have filed various legal challenges to try to force a cleanup of the selenium violations, but the groups allege that the DEP repeatedly has given coal companies more time to comply, and has filed its own legal actions to try to help the industry head off federal government action or citizen lawsuits. Mining operators and the DEP say treating selenium is more complicated and costly, meaning they need more time to find better solutions.

In the past week, DEP lawyers have filed lawsuits in state court against more than a dozen mining operations over selenium problems and other water pollution violations. The DEP asks circuit judges in those cases to approve new "compliance schedules" that would again give companies more time to clean up their discharges.

Most of the DEP lawsuits target operations where state officials have tried to approve compliance extensions, but where the U.S. Environmental Protection Agency has blocked such action.

DEP Secretary Randy Huffman said the lawsuits were aimed at complying with state legislation that allowed his agency to give companies two more years to fix selenium violations.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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