Coal Tattoo

UPDATED: Here’s a link to today’s Gazette story on yesterday’s hearing.

This afternoon in federal court in Huntington, lawyers, scientists and economists will debate deformed fish, water pollution treatment systems and compliance costs … It’s the first day of what is expected to be a week-long hearing that amounts to a major showdown over selenium discharges by surface coal mines in Appalachia.

U.S. District Judge Robert C. Chambers will be hearing testimony and legal arguments in a combined series of cases in which environmental groups — the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and the Sierra Club — are trying to force subsidiaries of Patriot Coal to comply with existing pollution limits for selenium.

The procedural history of these cases is a bit complicated, and I’m not going to go into any great detail. If you want more on that, I’d suggest checking out Judge Chambers’ own version of that history, starting on page 3 and then page 6 of his most recent selenium-related ruling.

Bottom line in that regard: Judge Chambers ruled back in June that one Patriot operation, the Hobet 21 complex along the Boone-Lincoln County border, continues to violate its selenium limits. The judge did not buy any of Patriot’s excuses, and was utterly unimpressed by the actions the WVDEP has taken to bring the mine’s discharge into compliance. But, the judge did not immediately outline the scope of what injunction he would issue, instead setting that matter for a hearing starting today.

That question has been combined with another case in which environmental groups want Patriot held in contempt for not — as promised in a consent decree — ending selenium violations at the Ruffner Mine in Logan County.

This whole selenium battle started back in 2003, when the broad federal government review of mountaintop removal turned up violations of selenium water quality standards.  The following year, a U.S. Fish and Wildlife Service report warned of more selenium problems downstream from major mining operations.

This side view of a fish larva taken from the Mud River Reservoir shows both eyes on the same side of the head, a key indication of likely selenium poisoning.

One of the world’s foremost experts on selenium, Dennis Lemly, has warned that selenium pollution is pushing the Mud River Watershed to “the brink of a major toxic event.”

Coal industry officials have tried unsuccessfully to weaken West Virginia’s water quality standards for selenium, arguing that the discharges aren’t really that bad. And the state Department of Environmental Protection — agreeing with the industry that treatment systems deemed to be affordable aren’t available — has repeatedly helped the industry delay dates for complying with the standard.

Even Judge Chambers has been pretty patient, serving the industry harsh words in several of his rulings, but continuing to give compliance extensions and not really cracking down on mine operators the way environmentalists had hoped he would.

In his June ruling, Judge Chambers indicated again that his patience is wearing thin, both with Patriot Coal subsidiary Hobet Mining and with state regulators:

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.

Look for environmental group lawyers to again urge Judge Chambers to institute a firm compliance schedule, and for the industry to argue for more time (and probably that this selenium stuff really isn’t anything to worry about anyway). And stay tuned to maybe find out a lot more about which of the various treatment test projects have worked, which haven’t, and whether the real issue here — as citizen groups say —  is just the coal industry’s desire to avoid spending the money required to clean up this pollution.

I’ll be covering the hearing today for the Gazette, so be sure to visit our Web site for an update late this afternoon.