Coal Tattoo

Water quality: Are we learning from the past?

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Dozens of miners turned out this week for a state DEP public hearing on water quality standards. Photo by Ken Ward Jr.

In the wake of Tuesday’s state Department of Environmental Protection public hearing on water quality standards, it seems a shame to allow the irony of the evening’s events to go unmentioned.

As the photo above shows, the West Virginia Coal Association did a find job of turning out a few dozen coal miners to sit at the hearing to show their support for the industry-pushed rule changes on aluminum and selenium that DEP (under orders from the Legislature) has proposed. Only two of the miners spoke, but I’m sure DEP got the message.

Still, let’s remember that there were really two sets of water quality rules on the agenda for the public hearing. The first were the changes that environmental groups say will clearly weaken pollution limits for aluminum and selenium and complicate the enforcement for both toxic chemicals. The other is a pair of site-specific water quality variances that DEP says are needed to allow it a broader — and less bound by court-mandated permit requirements — approach to cleaning up streams in the Tygart and Cheat river watersheds that continue to be burdened by acid mine drainage from previous coal mining activities.

Now, the industry’s argument in favor of the first set of changes — especially the one for selenium — is that the state’s current limits are unnecessarily stringent, and are making things even worse for the coal industry. The politicians who showed up with Tuesday night’s crowd of miners kept having to stop themselves from turning the event into another bash-Obama and the EPA rally, rather than a hearing at which the state DEP was giving mine operators what they want.

The thing is, while it’s true that citizen group lawsuits and court ruling have forced companies to spend money cleaning up selenium pollution — in one case helping push Patriot Coal to abandon mountaintop removal — it’s also true that scientists have found selenium is a serious problem for aquatic life in West Virginia streams (see here and here).

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What’s EPA up to on selenium?

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Gina McCarthy

Scientists remain very concerned about the impacts of selenium discharges from coal mines on aquatic life in Appalachian streams, so environmentalists are rightly a little concerned about the latest maneuver by the U.S. Environmental Protection Agency.

Earlier this week, EPA announced in the Federal Register that it was circulating for review yet another draft of potential changes to its recommended water quality standard for selenium.  The document itself is here and EPA has also posted this “Fact Sheet” about the draft.

Taylor Kuykendall over at SNL Financial had a story on this issue, reporting it this way:

The U.S. EPA is taking comments on recommended federal water quality criteria for selenium with a focus on concentrations found in fish, a change that could disrupt the momentum of environmental groups who have used the current standard in numerous victories over the coal industry.

… Dalal Aboulhosn, the Sierra Club’s clean water policy expert, told SNL Energy that the mineral is frequently found in toxic levels in streams below Appalachia surface coal mines.

“We intend to give scientific and real world examples to EPA’s request for public comment on its proposed revised criterion for the pollutant selenium,” Aboulhosn said. “The practice of mountaintop removal strip mining has proven time and again to be completely destructive of the environment and dangerous to the health of communities living in the shadows of these massive mines.”

Operators in West Virginia and Kentucky, the two states where meeting selenium standards has caused the most headaches for coal mining companies, have sought changes to state standards in light of numerous costs imposed fighting environmental lawsuits regarding selenium. Jason Bostic, vice president of the West Virginia Coal Association, said it is “very encouraging” that the EPA is considering a standard that incorporates fish tissue concentrations.

“That’s been part of the problem with selenium now going on 20 years,” Bostic said. “There’s been a recognition within the scientific community, I think, that selenium deserved a different standard versus a water column measurement. We just couldn’t get EPA to move in that direction.”

Bostic said selenium changes chemical composition very easily and comes in many forms, making it a “very problematic” pollutant for coal operators to treat.

Now, it’s important to remember that science has also found pretty selenium discharges from mining operations are linked to serious problems for aquatic life, with a recent paper from the Proceedings of the National Academy of Science reporting that increased conductivity, sulfates and selenium concentrations in mountaintop removal-affected streams:

… Have been linked to losses of sensitive aquatic biota throughout the central Appalachians. The Mud River reservoir (located 11 km downstream of the last Hobet Mine outfall) has a very high incidence of Se-related developmental deformities in the larvae of bluegill sunfish (Lepomis macrochirus) and largemouth bass ((Mircopterus salmoides). Instances of adults with physical deformities consistent with selenium toxicity have been observed on the mainstem of the Upper Mud River.

So while it’s true that selenium lawsuits have become an effective tool for citizen groups, it’s not like the court are just ruling with those citizens for the heck of it. Selenium is a serious issue for water quality and aquatic life in the coalfields. So while Jason Bostic is pretty happy, at least initially, about this development, here’s what the folks from Appalachian Voices had to say:

EPA is proposing a more complicated system for measuring selenium. Currently, the recommended standard for selenium consists of a four-day average concentration in water of 5 parts per billion (ppb). As proposed, the new rule will primarily rely on testing for the pollutant in fish tissue, a more complex method of monitoring than stream water testing. The complexity of this new standard will make it more difficult and expensive to implement for state agencies, industries, and concerned citizens.

The new standard does include water-based testing, but increases the recommended testing period from four days to 30 days. The new standard can be adjusted for fewer days of testing, if necessary. Under that provision, the new allowable selenium concentration for a four-day time period would be seven times higher than the current standard.

If the Obama administration really is fighting a war against the coal industry, isn’t this selenium proposal a funny way to do it?

Citizen groups sue EPA over Kentucky selenium rule

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Gina McCarthy

Just in from the Sierra Club:

Today, community and environmental groups took action against the U.S. Environmental Protection Agency for a recent decision allowing Kentucky to weaken its water quality standards for selenium, a pollutant common to mountaintop removal coal mines. This new standard, which tests selenium levels in fish tissue instead of in rivers and streams where mine wastewater is discharged, is strikingly similar to one the Bush Administration rejected as too weak to protect sensitive aquatic species. The lawsuit alleges that the standard fails to meet protections in the Clean Water Act. 

 “There’s simply no scientific or legal justification for this EPA to approve a standard worse than one rejected by the Bush administration,” said Alice Howell, Chair of the Cumberland Chapter of the Sierra Club. “In doing so, EPA has made a bad situation much worse. The new selenium standard endangers the health of Kentucky’s already compromised waterways while opening the door for other states to do the same.”

Readers may recall that the EPA approved the Kentucky standard last month, despite strong lobbying against it by the Sierra Club and other organizations. As this press release explains:

In mid-November, the EPA allowed Kentucky to change the way it monitors selenium pollution from surface mines, a change suggested by coal industry lobbyists, who appear to be motivated by citizen groups’ successful enforcement of the existing protections elsewhere in the region. 

Selenium pollution is known to accumulate in fish and aquatic wildlife over time, causing deformities and reproductive failures. When a coal company destroys a mountain to get at the coal underneath, much of what’s left is dumped into nearby valleys and streams. This pollutes the local waterways with selenium, among other substances that pose a threat to fish and humans. Valley fills are a major source of the selenium pollution found at mountaintop removal mines.

Sierra Club described the new lawsuit this way:

First, EPA violated the Clean Water Act by allowing Kentucky to institute a scientifically indefensible standard that fails to protect sensitive wildlife. Second, both citizens and EPA raised concerns about the difficulty of implementing a fish tissue based standard, yet EPA approved this standard based on a vague letter from Kentucky officials about how the new standard would be enforced. Kentucky’s assurances are not part of Kentucky state law and are thus unenforceable; therefore, EPA is not entitled to rely upon these assurances in approving the new standard.

You can read the complaint for yourself here.


EPA approves industry-backed selenium rule for Ky.

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Gina McCarthy

Here’s some news just released by the Sierra Club:

Today, the Environmental Protection Agency allowed the Kentucky Department of Environmental Protection to change how toxic selenium pollution from mountaintop removal mines is measured for the purposes of determining compliance with the Clean Water Act. Selenium, which causes significant biological damage to fish native to the waters of Appalachia, is a toxic pollutant discharged from valley fills into rivers and streams below mountaintop removal sites. The EPA-backed changes to how Kentucky measures selenium pollution allow the state to rely on an impractical and complicated test of tissue samples from fish rather than the current practice of directly sampling the water discharged below mountaintop removal mines and other selenium sources.  EPA’s capitulation gives a free pass to industry and will allow unacceptably high levels of selenium pollution to continue flow into Kentucky’s waterways.

We’ve discussed this issue before on Coal Tattoo here and here, and you can read the EPA decision letter for yourself here. And of course, selenium remains a major issue in West Virginia, with the passage of industry-backed legislation earlier this year.


There’s an important new ruling out from U.S. District Judge Robert C. Chambers addressing the continuing efforts by West Virginia political leaders to help the coal industry avoid controlling the pollution from their operations.

The ruling, released yesterday and available here, addresses SB 615, a 2012 bill that coal industry lobbyists hoped would shield them from citizen legal actions — especially over violations of West Virginia’s water quality standard for toxic selenium. Specifically, the case involves a lawsuit brought by lawyers from Appalachian Mountain Advocates on behalf of various environmental organizations over selenium pollution from the former Massey Energy (now Alpha Natural Resources) Brushy Fork coal-slurry impoundment in Raleigh County.

Essentially, Judge Chambers ruled that this legislation doesn’t do what coal industry lobbyists — and Alpha’s lawyers in this case — had hoped it would: Protect them from citizen suits like this one. And as readers also know, the success of citizen suits has been forcing coal companies to take greater steps to reduce pollution and — in the case of one company, Patriot Coal — to rework its business plans to phase out large-scale strip mining in Appalachia.

Some readers may recall that the legislation in question, proposed by Sen. Art Kirkendoll, D-Logan, and backed by the state Department of Environmental Protection, set as its goal, “clarifying that compliance with the effluent limits contained in a National Pollution Discharge Elimination System permit is deemed compliant with West Virginia’s Water Pollution Control Act.”  Basically, the idea was that if you stay below the specific permit limits for specific pollutants, then you’re good to go – nobody can come after you for water quality standard violations that may be occurring if those water quality standard violations aren’t tied to violations of those specific effluent limits.

Judge Chambers explains a variety of problems with this approach by the industry and its political supporters, but among them is the simple fact that, the declaration of legislative intent quoted above aside, the actual change to state statute here referred not to complying with effluent limits, but instead said that compliance with a permit … shall be deemed compliance with the Water Pollution Control Act.

In this particular case, the DEP-issued water pollution permit for the Brushy Fork impoundment does not contain a specific discharge limit for selenium. The state does have a water quality standard for selenium, though, and in their suit, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, Coal River Mountain Watch and the Sierra Club allege that discharges from Brushy Fork are causing violations of that selenium standard downstream.

To follow this, keep in mind a couple important pieces of legal background: First, West Virginia’s regulations to enforce the federal strip-mining law specifically state that all water pollution discharges from coal-mining operations shall not violate effluent limitations or cause a violation of applicable water quality standards. Second, West Virginia’s NPDES regulations for coal-mining operations require that all permits include a specific provision that discharges from coal mining operations are to be of such quality so as not to cause violation of applicable water quality standards.

Like other NPDES permits for coal operations in West Virginia, the permit for the Brushy Fork impoundment specifies that the facility’s discharges aren’t allowed to cause a violation of the state’s water quality standards — for selenium or anything else.  So, Judge Chambers has ruled, even though DEP did not put a numeric limit on Brushy Fork’s selenium discharge, that permit language means that if the company is causing a water quality violation for selenium, citizens groups can sue to try to stop that pollution.

Sierra Club pressures new EPA chief on selenium

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Gina McCarthy

We’ve written before about the ongoing issue in Kentucky regarding that state’s water quality standards for selenium, and of course this remains a major issue in West Virginia following the passage of new legislation during the session earlier this year.

Now, the Sierra Club is trying to gear up on this issue even more, sending a new letter this week to Gina McCarthy, the Obama administration’s newly confirmed administrator of the U.S. Environmental Protection Agency. You can read the letter here, and this is a bit of what it says:

I am writing you today to ask that the Environmental Protection Agency reject Kentucky’s proposed revisions to its selenium water quality standards and to require strong, enforceable water-column based standards that will protect all aquatic life. Right now, this critical issue is being decided by your staff in the Office of Water and Region 4. EPA has the authority to reject the weak and ineffective revised standards set by Kentucky, and as our ally in protecting water quality around Appalachia and the country I ask that you deny these revised standards.

The Kentucky Division of Water has proposed increasing the acute selenium standard to more than 12 times its currentlevel, and moving the chronic standard to a fish tissue standard that will be effectively unenforceable. Kentucky’s adoption of a fish tissue criterion for an aquatic life water quality standard (as opposed to a human health fish consumption standard) would be wholly unprecedented. Kentucky has already demonstrated that it lacks the capacity and commitment to enforce the current straightforward water column based standards, as shown by the state’s failure to impose selenium effluent limits on a single coal mine despite abundant evidence of high selenium discharges. Fish tissue sampling is much more costly and time-intensive, and therefore Kentucky is even less likely to enforce the proposed standards. Fish tissue sampling also presumes the presence of fish in the receiving streams, but most fish species have already been extirpated from the streams below coal mines. Citizen groups who currently fill the enforcement gap will similarly be unable to satisfy the burdensome fish tissue sampling requirements, leaving the revised standards unenforced.

EPA must reject Kentucky’s claims that its revised standards will be protective of the environment and surrounding communities. EPA’s decision will set a precedent for selenium standards across Appalachia. The other Appalachian states have made clear that they intend to follow Kentucky’s example and weaken their own selenium standards if EPA accepts Kentucky’s proposed revisions. This would allow for unacceptably high levels of selenium in waterways across the region, causing widespread injury to aquatic life. EPA has been an ally to citizens of Appalachia where their local and state officials have repeatedly failed to uphold their legal obligations to control the pollution from mountaintop removal. Ending the destructive practice of mountaintop removal coal mining is a high priority for Sierra Club. If EPA approves Kentucky’s weakened selenium standards, it will be an enormous step backward in the effort to protect the communities and environment of Appalachia. I urge you to reject Kentucky’s ineffective selenium standards.

It’s always interesting to watch as the same old issues keep coming back before the West Virginia Legislature — especially when it’s the same old complaints from the state’s coal industry and the same old response from lawmakers.

Take HB 2579 concerning water pollution limits for toxic selenium, which was the focus of a recent op-ed in the Gazette, the subject of an Associated Press article, and this afternoon will be at the center of a House committee public hearing. Now, if you’re not really following very closely the issues surrounding strip-mining and selenium pollution, this could get kind of confusing. Take a look, for example, at the AP story.

First, it tells us:

A West Virginia bill passed in 2009 ordered a study of selenium’s effect on aquatic life in West Virginia to be completed by 2010. It also ordered coal mines to have selenium monitoring systems in place by July of 2012. That 2010 study concluded that deformities in fish larvae found in West Virginia streams and lakes were associated with high levels of selenium. It found that in some selenium heavy waters, as many as 20 percent of some species of fish had deformities.

But then, in the  very next paragraph, the story says:

Jason Bostic, a spokesman for the West Virginia Coal Association, said … that there was no established evidence of adverse effects from high selenium levels.

Which  of those statements is true?

Well, let’s see what current West Virginia law says. Check out W.Va. Code 22-11-6 (3), which reads:

The Legislature finds that there are concerns within West Virginia regarding the applicability of the research underlying the federal selenium criteria to a state such as West Virginia which has high precipitation rates and free-flowing streams and that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia and, further, that considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium and to better understand the chemical reactions related to selenium mobilization in water. For existing NPDES permits, the department may extend the time period for achieving water quality-based effluent limits for selenium discharges into waters supporting aquatic life uses to July 1, 2012, upon compliance with all federally required public notice requirements for such modifications, upon a finding that the permittee cannot comply with its existing compliance schedule and that an extension is not in violation of any state or federal laws, rules or regulations. The West Virginia Department of Environmental Protection is hereby directed to undertake a comprehensive study relating to selenium and prepare a report detailing such findings and submitting the report to the Joint Committee on Government and Finance no later than January 1, 2010. In conducting such study, the West Virginia Department of Environmental Protection shall consult with, among others, West Virginia University and the West Virginia Water Research Institute.

Now, part of that language — the part that says the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia — is repeated in this year’s legislation. It was originally added to state law in 2009, when lawmakers were attempting to give coal companies more time to comply with the existing selenium standard. At the time, even the state Department of Environmental Protection opposed the legislation. Lawmakers approved it anyway.

But what’s interesting here is that lawmakers are repeating this line that says the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia. Why? if you read on in the 2009 legislation, the idea was supposedly that lawmakers were skeptical that selenium pollution from coal mines was a problem, and wanted the WVDEP to study the matter. Agency science would inform public policy, and lawmakers could make a better decision about an appropriate water quality standard for selenium.

Or at least that’s what SB 461 said:

Considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium and to better understand the chemical reactions related to selenium mobilization in water.

So here we are in March 2013, and lawmakers are revisiting the selenium issue. What did they find out from this “considerable research” they wanted to WVDEP to perform? Well, WVDEP officials reported in this study (dated January 2010) about deformities in fish downstream of mountaintop removal operations that agency official said are consistent with the kinds of problems caused by excessive selenium exposure.

If the WVDEP study isn’t enough, lawmakers could also review a study published not long ago in the Proceedings of the National Academy of Sciences, which found high levels of selenium and deformed fish downstream from one of West Virginia’s largest mountaintop removal operations.

But really, the statement that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia was no more true when lawmakers added it to the West Virginia Code than it is now. After federal government investigators found evidence of selenium violations downstream from mountaintop removal as part of a major study more than a decade ago, and the U.S. Fish and Wildlife Service urged more research on the matter, one of the top selenium experts in the country found deformed fish downstream from mining operations in the Mud River watershed, and warned that area was on the brink of a major toxic event.

So doesn’t it tell us something important when lawmakers, having asked for more research, are now proposing a bill that again falsely states that no impacts from selenium have been observed in West Virginia?  Will  the facts and scientific evidence matter this time around? Well, you decide. Here’s what the bill’s main sponsor, Delegate Rupert Phillips, D-Logan, told the AP:

You’ve got two different worlds, bugs and people, so you know people first. I’ll fight for the coal industry until I’m dead.

Breaking: Patriot agrees to huge selenium cleanup

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Photo by Vivian Stockman, Ohio Valley Environmental Coalition

In federal court down in Huntington, attorneys for the Sierra Club and other groups have just filed copies of a major lawsuit settlement that insiders are saying could require Patriot Coal to spend hundreds of millions of dollars to treat selenium pollution from three of the company’s major mountaintop removal mining complexes here in West Virginia.

The deal will require Patriot to build and operate new treatment systems for 43 water discharge outfalls on 10 different permits — far more than 14 outlets covered in a previous deal with Alpha Natural Resources or the five outfalls included in a settlement with Arch Coal.

And think about it — the most recent financial filings from Patriot say the company was already expecting to pay $95 million to install treatment systems for just four outlets at two of its mines, under a 2010 ruling in which U.S. District Judge Robert C. Chambers held the company in contempt for not moving quickly enough to end its selenium pollution violations (see here, here and here for more on that case)

Attorney Joe Lovett, executive director of Appalachian Mountain Advocates, which is representing citizen groups in selenium cleanup litigation, told me today:

This is the culmination of years of work on this issue. We’re very pleased that the coal industry will have to pay the costs of its business and clean up polluted waters.

This new settlement — which I’ve posted online here — covers water pollution outlets at Patriot’s Hobet 21 complex along the Boone-Lincoln border (where selenium pollution has been previously documented here and here), the Samples Mine complex in the Cabin Creek area, and the Ruffner Mine in Logan County. According to the Sierra Club:

The settlement requires Patriot to install treatment technology on a set schedule to bring selenium discharges within acceptable levels. In addition, the company will pay penalties of $7.5 million, with the vast majority of those funds directed to the West Virginia Land Trust. Patriot will be subject to significant additional penalties for any violations that occur after the compliance date for each source of pollution.

Jim Sconyers, chair of the West Virginia Chapter of the Sierra Club, said:

Several years ago, the coal industry said that there was no way to treat selenium pollution from their mines. But now they’re agreeing to treat that pollution. This settlement, and other recent actions against Arch Coal and Alpha Natural Resources, shows that mining companies can do far more than they admit to clean up their pollution.

Dianne Bady with the Ohio Valley Environmental Coalition said:

West Virginia coal mines are finally starting to address their legacy of selenium pollution. Mine operators and regulators in Kentucky, Tennessee, and Virginia need to follow suit.

Interestingly, the deal also requires Patriot to drop any future plans for mining a major permit — and creating significant selenium pollution — at its Jupiter-Callisto Mine in Boone County, which is located near the home of anti-mountaintop removal activist Maria Gunnoe, who won the Goldman Environmental Prize in 2009 for her work to protect West Virginia mountains, streams and communities.

Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy, said:

Although treatment may be sufficient to address these existing selenium problems, ultimately the industry and regulators need to recognize that it’s not appropriate to mine coal where disturbing selenium laden rock strata will release harmful amounts of pollution.

UPDATED: Here is a statement just issued by Patriot Coal —

Patriot Coal Corporation (NYSE: PCX) today announced that it has entered into a consent decree with the Ohio Valley Environmental Coalition, Inc., the West Virginia Highlands Conservancy, Inc. and the Sierra Club to resolve claims under the Clean Water Act relating to Patriot’s mining activities in West Virginia.

“Selenium is an issue that many companies involved in coal mining must confront.  Today’s settlement by Patriot represents a strategic response to this challenging issue.  We are pleased that this settlement provides a comprehensive framework for Patriot to address selenium across our properties going forward,” stated Patriot President and Chief Executive Officer Richard M. Whiting.  “We believe the consent decree serves the interests of both the public and our stockholders.”

As a result of the negotiated settlement, the Company has agreed to a comprehensive plan which provides for the necessary time and flexibility in the development, selection and implementation of emerging technologies to meet compliance deadlines in the future.  To resolve claims related to the consent decree, the Company will pay $7.5 million in civil penalties, to be allocated between the federal government and the West Virginia Land Trust for land preservation projects within the Kanawha River and Guyandotte River watersheds.

The consent decree, which has been filed with the U.S. District Court for the Southern District of West Virginia, is subject to a public comment period and must be approved by the Court before it becomes effective.

Alpha agrees to $50 million for selenium treatment

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This just in from the Sierra Club:

Today, a coalition of conservation and environmental groups completed a legal settlement with Alpha Natural Resources over high levels of selenium output at several of the company’s West Virginia coal mines. The settlement requires that the coal mining company – formerly Massey Energy — begin construction of selenium treatment facilities with an estimated construction cost of over $50 million, and to pay penalties of $4.5 million. The suit was brought by the West Virginia Chapter of the Sierra Club, West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Coal River Mountain Watch.

“This settlement will require Alpha to pay their due and start addressing the damage done to West Virginia waterways,” said Jim Sconyers, Chair of the West Virginia Chapter of the Sierra Club. “This settlement reflects another step in our fight to ensure that coal companies act responsibly in regards to the health of surrounding communities and West Virginia’s wild lands.”

The settlement requires Alpha to immediately begin installing treatment technology to bring selenium discharges within acceptable levels. The proposed date of final compliance for the settlement is July 1, 2014 for all mines affected to ensure Alpha has time to install treatment facilities and make any necessary adjustments. Alpha will be subject to significant penalties for any violations that occur after the compliance date for each source of pollution. The vast majority of the penalties will go to the West Virginia Land Trust.

“This settlement, which follows recent agreements with Arch Coal and Patriot Coal, proves that coal mines in West Virginia have the ability to treat their selenium problems,” said Dianne Bady with the Ohio Valley Environmental Coalition. “Now it’s time for all coal companies to take similar actions.”

“Although treatment may be sufficient to address these existing selenium problems, ultimately the industry and regulators need to recognize that it’s not appropriate to mine coal seams that are high in selenium,” said Cindy Rank with the West Virginia Highlands Conservancy.

Selenium, a toxic element that causes reproductive failure and deformities in fish and other forms of aquatic life, is discharged from many surface coal-mining operations across Appalachia. At very high levels, selenium can pose a risk to human health, causing hair and fingernail loss, kidney and liver damage, and damage to the nervous and circulatory systems.

“The West Virginia DEP should be ashamed that citizen groups are doing what the agency should have done years ago,” said Vernon Haltom, executive director of Coal River Mountain Watch. “Instead, it’s left to citizen groups to take action to protect West Virginia’s streams and communities.”

The settlement was lodged with the U.S. District Court for the Southern District of West Virginia. The U.S. government will have an opportunity to review the settlement before its terms take effect.

Details of Arch Coal selenium deal outlined

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We reported about three months ago that a settlement was in the works in the environmental community’s lawsuit against Arch Coal Inc. over continued and repeated selenium violations at some of its operations in Southern West Virginia.

Last Thursday, lawyers for the Ohio Valley Environmental Coalition and other groups filed this proposed consent decree with U.S. District Judge Robert C. Chambers in Huntington. And today, the environmental group plaintiffs issued a news release announcing:

A coalition of conservation and environmental groups recently completed a legal settlement with Arch Coal and its subsidiaries which will require the coal mining company to clean up toxic run off from six coal mines in West Virginia. The original suit was filed against Arch in June of 2010 for violating limits on selenium at those locations. The suit was brought by the West Virginia Chapter of the Sierra Club, West Virginia Highlands Conservancy, Ohio Valley Environmental Coalition, and Coal River Mountain Watch.

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Settling selenium: Deal struck in Massey/Alpha case

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Environmental group lawyers appear to have reached another deal with a major coal industry player over selenium pollution by mining operations

Trial had been scheduled to start this morning in U.S. District Court in Huntington in case brought by the Ohio Valley Environmental Coalition against then-Massey Energy subsidiary Independence Coal.

But the trial was canceled and U.S. District Judge Robert C. Chambers entered an order today saying he “has been advised by counsel of the pending settlement of the remaining issues in this action.”

No additional details were provided — at least not yet — and the judge set a status conference for Aug. 22.

Word of this potential settlement comes a month after a previous deal was tentatively reached in a selenium case OVEC brought against Arch Coal Inc. operations, and in the wake of Judge Chambers ruling a year ago that ordered Patriot Coal to begin dealing with selenium problems at some of its Southern West Virginia operations.



Settling selenium: Deal with Arch Coal expected

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Citizen groups appear headed for a settlement in another lawsuit over selenium pollution by the coal industry

Trial had been scheduled to start next week before U.S. District Judge Robert C. Chambers in a suit brought by the Ohio Valley Environmental Coalition and other groups against Arch Coal subsidiaries Coal-Mac and Mingo Logan Coal.

Readers may recall that Judge Chambers previously issued an important ruling in this case and other suit against Massey Energy subsidiaries, and in the Arch Coal case trial was set to determine exactly what sort of relief Judge Chambers would order to remedy the company’s violations of selenium limits.

Well, yesterday, Judge Chambers called off the trial, saying the parties had informed the court of the “pending settlement” of the issues in the Arch Coal case. The judge set a status conference for July 26 to allow the parties time to work out the details.

The Massey case is still set for trial on Aug. 9. Stay tuned …

In a ruling just issued today, U.S. District Judge Robert C. Chambers has allowed environmental groups to continue lawsuits over selenium pollution against Arch Coal and Massey Energy. We’ll have more about this in tomorrow’s Gazette … Until then, here’s a copy of the ruling:

Suing over selenium … again

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Environmental groups have brought another in their series of lawsuits trying to force coal operators and regulators to take seriously the problems associated with selenium pollution from mining operations.

Vicki Smith at The Associated Press has the story about the new case filed by the Sierra Club and others:

Three environmental groups sued coal operator ICG Eastern in federal court Wednesday over a Webster County surface mine they say has been discharging toxic selenium into streams for years.

The Sierra Club, the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy filed the case in U.S. District Court in Elkins over the Knight-Ink No. 1 mine. The complaint alleges violations of state and federal law, including the federal Clean Water Act and the Surface Mining Control and Reclamation Act.

The complaint also claims state regulators have been lax in cracking down on ICG, allowing discharges into Big Beaver Creek, and two tributaries, Oldhe Fork and Board Fork, at levels above those designed to protect aquatic life. The mine is in east-central West Virginia, in a scenic, sparsely populated county that juts into the Monongahela National Forest.

I’ve posted the latest lawsuit here and you can click here to go back and read previous coverage of the selenium issue.

ICG officials told Vicki they were still reviewing the suit and had no immediate comment. In a press release, Cindy Rank of the West Virginia Highlands Conservancy, one of the groups that brought the case, said:

If we don’t stop these illegal and harmful discharges of selenium now, we have only ourselves to blame for the destruction of our valuable water resources and for the long term liabilities that will be passed along to our children, grandchildren and future citizens of the state.

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Selenium update: Is WVDEP stopping or stalling?

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We’ve asked before here on Coal Tattoo whether the West Virginia Department of Environmental Protection is stopping selenium pollution or stalling efforts to force compliance with existing water quality standards.

Well, here’s what agency officials have done in their latest legal maneuver on selenium … you decide what WVDEP is up to.

Back between Christmas and New Year’s the WVDEP’s lawyers filed in court a proposal to settle a lawsuit they had filed against International Coal Group’s ICG Eastern operations in Webstre Circuit Court.

Under the deal, ICG would pay $228,750 in fines — which, as WVDEP penalties go, is not insignificant.

But what about compliance? What about stopping selenium discharge violations at the ICG surface mining operations involved in the suit?

Well,WVDEP had at least twice given ICG more time to fix its violations, with the latest compliance deadline being April 5, 2010. ICG asked for still more time, and the U.S. Environmental Protection Agency objected. WVDEP decided to take the company to court, a move that environmental groups see as a way to head off a separate citizen suit to try to force compliance.

In its proposed settlement, WVDEP notes that ICG previously installed wetlands treatment systems at several of its discharge outlets and that those systems “have shown promise in reducing selenium levels, but have not yet had time to fully mature and are not yet functioning as designed.”  WVDEP continued:

ICG Eastern has also continued to evaluate various outlets’ selenium levels over time to understand and address problem areas, and continues to evaluate other treatment options for outlets where there is not sufficient area to construct a wetland treatment system, including, but not limited to, several different types of zero valent iron treatment technology and microbial/biological treatment technology.

And WVDEP went on:

There are technologies under development by ICG Eastern and others, implemented on pilot scale, for the treatment of selenium in discharge. The parties agree that there is currently no technology that has been proven on a full scale basis to consistently reduce selenium levels, but recognize that information available to parties, including information related to ICG Eastern’s treatment efforts, provides a reasonable basis upon which to conclude that ICG Eastern will achieve compliance with its final selenium limits by the dates set forth herein.

Those dates? Some outlets must comply with selenium limits by Aug. 1, 2012. Others have until Dec. 1, 2012. But at the same time, WVDEP has not required ICG to settle on a technology, let alone one that has proven it will work.

Compare that to what U.S. District Judge Robert C. Chambers did in the Patriot Coal litigation, where the judge — tired of stalling by the company — heard testimony on various treatment plans and then ordered the company to install one that the testimony convinced him would work.

If you have any thoughts, the comment period on the WVDEP’s proposed settlement runs through Feb. 3.  You can send them to Office of Legal Services, WV Department of Environmental Protection, 601 57th Street, S.E., Charleston, WV 25304.

More investments in faulty selenium treatment?

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Gazette photo by Lawrence Pierce/John Sawyer, chief technical officer at Liberty Hydrologic Systems, has installed selenium-treatment tanks like this one at sites in three states in the U.S.

In an earnings statement issued today, Patriot Coal told investors about its recent legal settlement regarding treatment of toxic selenium pollution from its strip mines:

During the 2010 third quarter, the Federal District Court in Huntington, West Virginia ruled on selenium lawsuits brought by various environmental constituencies against the Company’s Apogee and Hobet subsidiaries. Pursuant to the court order, Apogee was ordered, among other things, to install a biological-based fluidized bed reactor system to treat selenium discharges at certain affected outfalls. Additionally, Hobet was ordered to submit and implement a treatment plan to come into compliance with applicable selenium discharge limits under its Hobet 22 permit. As a result of this order, the Company recognized a charge of $20.7 million, which is expected to be spent over the estimated operating life of the treatment system. The charge was included in reclamation and remediation obligation expense in the 2010 third quarter. Additionally, the Company estimates the capital investment required as part of the order will be approximately $50.0 million.

In a conference call with industry analysts, Patriot CEO Richard M. Whiting had this to say about the legal settlement and the selenium issue:

It appears to us that it is an industry-wide issue and it will require an industry-wide comprehensive solution. There is definitely going to be impact to other people who mine coal.

There is no silver bullet to fix this quickly. It will take time and it will take money. There’s going to be a lot of activity around it for many years to come.

It seemed like the Patriot comments were especially timely, given a story in today’s Gazette in which Keith Pauley, CEO of the Mid-Atlantic Technology, Research & Innovation Center (MATRIC), announced:

… A MATRIC spin-off company, Liberty Hydro, has received a $500,000 investment from a Philadelphia-based private equity firm. Liberty Hydro has developed a system designed to remove selenium from water.

You have to wonder if these investors were aware of what U.S. District Judge Robert C. Chambers had to say in a recent ruling about zero-valent iron, or ZVI, selenium treatment technology that both Liberty Hydro and another firm have touted.

Continue reading…

Judge Chambers issues formal selenium ruling

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U.S. District Judge Robert C. Chambers today issued his written opinion and order in a ruling we’ve discussed before — where he ordered Patriot Coal to clean up its selenium discharges.

I’ve posted a copy of the judge’s opinion and order here. Remember that this decision could have huge implications for the coal industry.

Judge Chambers orders Patriot to treat selenium

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We’re just getting word about a major ruling by U.S. District Judge Robert C. Chambers in the case over selenium pollution from Patriot Coal operations in Southern West Virginia.

Ruling from the bench at a hearing this afternoon, Judge Chambers held Patriot’s Apogee Coal subsidiary in contempt of court for not meeting earlier deadlines to clean up selenium discharges from its Ruffner Mine in Logan County.

The judge ordered Patriot to install the FBR treatment system — which uses bugs that eat the selenium — within 2 1/2 years at Ruffner and also to install treatment within 2 years and 8 months at its Hobet 22 Mine along the Boone-Lincoln County line.

Judge Chambers also ordered the company to post within two weeks a $45 million letter of credit that would ensure the treatment systems are installed. The judge also plans to appoint a special master to oversee the situation.

See previous coverage of these cases here, here and here.


Here’s a link to today’s Gazette print story about Judge Chambers’ selenium ruling.

Selenium update: Settlement talks continue

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When last we checked in on the big selenium case before U.S. District Judge Robert C. Chambers, settlement discussions were underway.

Court records filed last week indicate that is still the case. Judge Chambers continued proceedings in the case, asking for lawyers to telephone him this Wednesday with an update on those talks.

An open hearing in the courtroom has been set for next Monday at 1 p.m., according to the court filings.

Selenium settlement or a decision from the judge?

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The big selenium case before U.S. District Judge Robert C. Chambers may be headed for a settlement, or at least an early end, according to some legal filings that were just made public.

It seems that settlement negotiations resumed after yesterday’s court sessions, and early this afternoon lawyers for environmental groups and Patriot Coal asked Judge Chambers for more time to see if they could work something out.  Here’s how the judge’s clerks described what happened, according to a “daybook entry” posted in the case docket:

The parties requested that the Court set a hearing to entertain settlement or for closing arguments.

That hearing is scheduled for 1:30 p.m. Tuesday … so we’ll either hear about a settlement or the two sides will present closing arguments, and then wait for a decision from Judge Chambers.

Interestingly, the early end of the trial — evidence had been scheduled to be presented today and Friday — means that Patriot Coal won’t be putting on any evidence about its belief that selenium violations aren’t really harming aquatic life.

See previous posts on this case here and here, and a Gazette story here, and be sure to stay tuned …