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Patriot Coal's selenium cleanup lags, court told

HUNTINGTON, W.Va. -- Patriot Coal should be forced to cease stalling efforts to stop exceeding water pollution limits for toxic selenium at its mountaintop-removal mining operations in Southern West Virginia, a federal judge was told Monday.

Lawyers for a citizens group urged U.S. District Judge Robert C. Chambers to set binding timelines and force Patriot to put up a $95 million letter of credit to ensure it cleans up it discharges.

Joe Lovett, lawyer for the Ohio Valley Environmental Coalition, said Patriot's mines "are in exactly the same place today they were two years ago," when Chambers demanded a compliance plan.

Patriot attorney Thomas Hurney asked Chambers to give the company more time. He said the company has "made great strides" at fixing a new pollution problem and is "at the forefront of the coal industry on this."

"Were we perfect? No. But I suggest to you that you won't find any other company that has done as much as Patriot," Hurney said.

Lovett and Hurney made their statements at the start of a weeklong trial that is expected to be a major showdown in the legal fight over coal mining and selenium.

In the hearing, Chambers has combined two ongoing cases against St. Louis-based Patriot Coal Corp. over selenium discharges from its mines in Southern West Virginia.

One case concerns continuing selenium violations at Patriot's Hobet 21 complex along the Boone-Lincoln county border. In June, Chambers ruled against the company regarding Hobet 21, but did not immediately say what Patriot must do about the problem.

The other case concerns Patriot's Ruffner Mine in Logan County. Environmentalists want the judge to hold the company in contempt for not meeting a court-approved April deadline for cleaning up that operation's selenium discharges.

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, selenium can be very toxic.

Selenium impacts the reproductive cycle of many aquatic species, can impair the development and survival of fish, and can damage gills or other organs of aquatic organisms subject to prolonged exposure. It can also be toxic to humans, causing kidney and liver damage, as well as damage to the nervous and circulatory systems.

In 2003, a broad federal government study of mountaintop-removal mining found repeated violations of water quality limits for selenium. The following year, a U.S. Fish and Wildlife Service report warned of more selenium problems downstream from major mining operations.

Since then, coal lobbyists have tried unsuccessfully to weaken the state's selenium limits, but have persuaded the state Department of Environmental Protection to repeatedly delay compliance deadlines. The Obama administration's U.S. Environmental Protection Agency has begun to object to those delays, and is considering issuing an even tougher selenium standard.

Patriot's Hobet 21, Ruffner and Samples operations have been the focus of a complicated series of lawsuits, made more complex by moves by the Legislature and the Manchin administration to ease compliance deadlines and head off lawsuits by citizens groups.

During Monday's afternoon hearing, Patriot Vice President John McHale said his company had asked an engineering firm to draw up plans for a centralized plant to treat selenium from various pollution outfalls at the Ruffner Mine -- but did not do so until Monday morning, just hours before the court session.

The company had previously agreed to comply with pollution limits by April 2010. Patriot has asked for an extension to July 2012. But Hurney and McHale both said even that won't be enough, and installation of treatment will take another six months beyond that date.

During his opening statement, Lovett told Chambers that Patriot is not only stalling compliance efforts, but also misleading investors and the public about the potential costs of selenium treatment at its mines.

One Patriot financial disclosure put potential costs as high as nearly $400 million over 30 years.

But Lovett said the company is "underestimating cost by at least one order of magnitude" because it has not properly counted all of the selenium-laden water flow off its surface mines.

Questioned by Lovett, McHale conceded Patriot didn't know how much pollution flow it would need to treat. "I do not know ultimately what we will have to treat," he said.

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


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