CHARLESTON, W.Va. -- A federal judge has again ruled that a bill backed by the coal industry and the Tomblin administration does not shield mine operators from citizen group lawsuits for violations of West Virginia's water quality standards.
U.S. District Judge Robert C. Chambers also said he was not going to second-guess whether a 30-year-old state rule -- requiring all water pollution permits to comply with all state water quality standards -- was properly promulgated.
Chambers ruled Thursday in a case brought by the Ohio Valley Environmental Coalition against Fola Coal Co. over selenium pollution from the company's strip-mining operations in Clay County.
The case is the latest legal skirmish in which environmental groups, represented by Appalachian Mountain Advocates lawyers, have been using Clean Water Act citizen suits to force companies to curb mining selenium discharges. In some parts of the state, such discharges have been linked to deformed fish and reduced fish populations downstream from mountaintop removal operations.
In a 51-page opinion, Chambers ruled that the citizens had submitted discharge reports from Fola that showed multiple violations of selenium water quality standards from July 2008 to March 2012 at a variety of operations, including at Cannel Coal Hollow, Leatherwood Creek, Right Fork, Cannel Coal Point Removal and Cannel Coal Surface Mine.
The judge noted that Fola "concedes that no treatment facilities have been put in place for the selenium discharges at issue in this case."
Chambers did not rule on how many violations had occurred and said that he would take up at a later time the issue of what Fola would be required to do to remedy the situation.
Selenium, a naturally occurring element found in many rocks and soils, is an antioxidant needed in vary small amounts for good health. In slightly larger amounts, selenium can be 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 also can be toxic to humans, causing kidney and liver damage, as well as damage to the nervous and circulatory systems.