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Judge orders end to selenium violations at Logan mine

A federal judge has for the first time ordered a West Virginia coal operator to stop discharging illegal levels of the toxic mineral selenium into state streams.

U.S. District Judge Robert C. Chambers gave Apogee Coal Co. four months to clean up its selenium discharges in Logan County.

Chambers gave Apogee, an arm of Magnum Coal, 30 days to submit a plan containing a compliance schedule. The company has 90 days after that to implement the plan or show the judge why it cannot do so.

"In passing the [Clean Water Act], Congress made a clear policy choice in favor of environmental protection," Chambers wrote in a 20-page decision. The judge added, "There is no exception to permit compliance because such compliance is expensive."

Chambers issued his ruling on May 27 in one of two lawsuits environmental group lawyers have filed against Magnum Coal operations over the company's repeated selenium discharge violations.

The Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy filed citizen suits against mine operators after inaction by the state Department of Environmental Protection to stop the violations.

"DEP has been trying to get out of actually enforcing selenium limits in all of these permits," said Cindy Rank, mining chairwoman for the Highlands Conservancy. "We have to be grateful to Judge Chambers that he recognized that was just not adequate."

Selenium, a naturally occurring element found in many rocks and soils, is an antioxidant that is needed in very small amounts for good health. But in slightly larger amounts, selenium can be highly toxic. In humans, it can cause hair loss, nail brittleness and neurological problems such as numbness. In aquatic life, very small amounts of selenium have been found to cause reproductive problems.

In 2003, a broad federal government study of mountaintop removal coal mining found repeated violations of water-quality limits for selenium in water downstream from mining operations. The following year, a report from the U.S. Fish and Wildlife Service found troubling levels of selenium in fish downstream from large surface mines.

Coal industry lobbyists have tried - so far unsuccessfully - to persuade lawmakers and the DEP to relax West Virginia's selenium limits. The Manchin administration moved instead to give nearly 100 coal operations three more years to fix violations of their selenium permit limits. Environmental groups are challenging about two dozen of those DEP compliance orders before the state Environmental Quality Board. Board members heard closing arguments in February, but have yet to issue a decision.

In a related case pending before Chambers, selenium expert Dennis Lemly has warned that pollution from another Magnum operation is dangerously poisoning Mud River fish, leaving some with serious deformities. Fish samples taken by state officials showed some specimens with two eyes on one side of the head, and others with curved spines, according to a report filed by Lemly last month.

"The Mud River ecosystem is on the brink of a major toxic event," Lemly wrote. "If waterborne selenium concentrations are not reduced, reproductive toxicity will spiral out of control and fish populations will collapse."

In last week's ruling, Chambers focused on a water-pollution permit for Apogee operations on a broad ridge separating Rum Creek and Buffalo Creek in Logan County.

Unlike many other coal operations, the Apogee mine was not granted a three-year compliance waiver by the DEP when its permit was issued in August 2006. Company lawyers and DEP officials contend this was a mistake by the state agency and that the waiver should have been included.

In January 2007, the DEP issued a "compliance order" to modify the permit and grant the waiver given to other mines.

But Chambers threw out that compliance order, ruling that the DEP had improperly not allowed for public comment on its terms before it was issued.

"Public notice is not merely a formality," the judge wrote, "it ensures that the public has a meaningful opportunity to participate in the issuance of a permit."

On Friday, West Virginia Coal Association Vice President Jason Bostic said, "We're obviously disappointed in the judge's decision, but we usually are when we get decisions from the federal courts."

Bostic said industry officials don't believe they have found an effective treatment yet for dealing with selenium runoff from strip mines.

"That's not something we have in our pocket that we can just whip out and implement tomorrow," Bostic said.

But Chambers noted that Apogee "has not taken even the initial step towards compliance and has indicated that it has no plans to do so."

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.


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