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Judge allows selenium cases to proceed

Read the ruling here

 CHARLESTON, W.Va. -- A federal judge on Thursday paved the way for environmental groups to continue two lawsuits aimed at forcing coal operators to comply with state pollution limits for toxic selenium runoff from their mines.

U.S. District Judge Robert C. Chambers allowed the Ohio Valley Environmental Coalition and three other groups to continue lawsuits against certain operations of Arch Coal Inc. and Massey Energy.

The environmental groups filed citizen lawsuits under the federal Clean Water Act, asking Chambers to order the companies to install appropriate treatment systems to end selenium violations from eight water-discharge permits.

In a 50-page ruling, Chambers rejected arguments from the companies that a stay of their appeal of a related state permit case blocked the citizens from bringing their federal court lawsuits.

The companies had been seeking an extension of a West Virginia Department of Environmental Protection deadline of April 5, 2010, to comply with selenium discharge limits.

The DEP rejected the extension after the U.S. Environmental Protection Agency issued specific objections to the move. The companies appealed, and the state Environmental Quality Board issued a ruling it said stayed the compliance deadline until a full appeal could be heard.

Chambers said that arrangement "resulted in a situation where the state administrative review process has rendered the EPA review of the state-issued permits -- a federal law requirement -- meaningless."

"The stays and, now, a placement of Defendants' appeals on the EQB's inactive docket, have resulted in a de facto extension of the compliance schedule in contravention of the EPA objections," the judge wrote.

Chambers asked both sides to provide him with scheduling information by April 15 so he can set further hearings on the two lawsuits. The judge ruled that the companies were violating permit limits, and said further hearings will be held to decide the scope of injunctive relief and civil penalties.

Citizen groups and their lawyers have been pursuing actions over selenium pollution as scientists and federal regulators express concerns that mining discharges are threatening aquatic life.

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 toxic.

Selenium impacts the reproductive system of many aquatic species, can impair the development and survival of fish, and can damage gills and other organs of aquatic organisms subject to prolonged exposure.

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 DEP to repeatedly delay compliance deadlines for many operations.

In another case, Chambers held Patriot Coal in contempt of court and ordered the company to install equipment to clean up selenium pollution at two of its operations in Southern West Virginia.

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


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