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.

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Another selenium suit targets Patriot Coal

On the heels of a favorable federal court ruling earlier this week and two more major lawsuits, environmental groups today filed another case over selenium pollution related to mountaintop removal coal mining.

This one targets two Patriot Coal subsidiaries, Catenary Coal Co. and Hobet Mining LLC.  Specifically, the suit alleges continuing selenium violations at the Samples Mining complex and at mines related to the Hobet 21 complex.

By the way, here’s some interesting commentary about selenium from the Union of Concerned Scientists:

Selenium is a naturally occurring element that is discharged into the environment through mining activity. While selenium is an important micronutrient, it can be toxic to fish, birds and other wildlife in even small concentrations.

Of course, coal industry officials continue to dismiss concerns about selenium, with some pointing to its presence in vitamin supplements and the like. But it’s important to remember that, despite its nutritional value at low levels, selenium has a very narrow margin of safety — the different between the amount that is healthy and safe and the amount that is dangerous — in both humans and other animals.

And more to the point where mountaintop removal is concerned, we know that one of the world’s top experts on selenium has concluded that mining pollution has already left one West Virginia watershed on the brink of a major toxic event related to selenium.

The selenium issue is clearly heating up again, so stay tuned …

Earlier today, the Ohio Valley Environmental Coalition and other groups filed two major new lawsuits in their continuing effort to stop illegal discharges of toxic selenium from coal-mining operations in West Virginia.

The suits were filed in U.S. District Court here in Charleston in Huntington against subsidiaries of Richmond, Va.-based Massey Energy and St. Louis-based Arch Coal.

Lawyers for OVEC and for the West Virginia Highlands Conservancy, Coal River Mountain Watch and the Sierra Club filed the suits just days after a significant ruling in another selenium case, in which U.S. District Judge Robert C. Chambers blasted Patriot Coal’s Hobet Mining subsidiary and the West Virginia Department of Environmental Protection for continuing to delay the cleanup of selenium violations across the state’s southern coalfields.

These cases are all part of a number of legal actions brought by various citizen groups  to try to force the coal industry and regulators to stop violating water quality standards for selenium runoff.  Recall that one of the world’s top experts on selenium has already concluded that mining pollution from Hobet’s complex along the Boone-Lincoln county line has left the Mud River ecosystem “on the brink of a major toxic event.”

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U.S. District Judge Robert C. Chambers today issued a ruling that granted a motion for summary judgment sought by environmental groups over illegal selenium pollution by Patriot Coal’s huge mountaintop removal complex along the Boone-Lincoln county border here in West Virginia.

The ruling concerning Patriot’s Hobet Mining subsidiary is posted here, but note that Judge Chambers has not yet set the scope of any injunction. Instead, he scheduled a big hearing for Aug. 9 to consider that issue. Judge Chambers had already set a hearing for that same day to consider whether to hold another Patriot subsidiary, Apogee Coal, in contempt of court over similar selenium problems.

These cases are part of a number of legal actions brought by various citizen groups — the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition and the Sierra Club — to try to force the coal industry and regulators to stop violating water quality standards for selenium runoff.  Recall that one of the world’s top experts on selenium has already concluded that mining pollution has left the Mud River ecosystem “on the brink of a major toxic event.”

Judge Chambers wrote a 55-page decision in this Hobet 21 case, and I’m still reading. But a couple of things thus far are clear: The judge ruled that the company continues to violate it selenium permit limits, he did not buy any of the company’s excuses, and Judge Chambers was not impressed with the way the West Virginia Department of Environmental Protection has handled selenium issues, at one point describing a WVDEP settlement with Hobet this way:

… The WVDEP could have demanded civil penalties for past violations in the modified consent decree. In this Court’s opinion, the agency’s failure to do so reflects poorly on the agency and is indicative of a lack of motivation to design a remedy reasonably calculated to eliminate non-compliance.

Update:

Here’s a link to the story in today’s Gazette about the ruling from Judge Chambers.

Mountaintop removal mining in the Gauley River watershed has landed the Gauley on the annual list of endangered waterways published by the group American Rivers.

We’ve got a story on the Gazette’s Web site about this development, and you can read the American Rivers discussion of the threats to the Gauley here.  The entire list of endangered rivers is here.

Among the recommendations from American Rivers is that EPA publish tougher national water quality guidance for selenium, something that we’ve reported before here appears likely to be coming soon. Interestingly, West Virginia Public Broadcasting’s Erica Peterson reported this morning that U.S. EPA has filed specific objections to the Manchin administration’s continuing efforts to give coal operators more time to comply with the existing selenium standards.

Stopping selenium: New EPA standards coming?

The Obama administration is apparently nearing completion of a proposal that would tighten the selenium discharges from coal-mining operations.

Release of a new U.S. Environmental Protection Agency recommended water quality criteria for selenium is “imminent,” state Department of Environmental Protection officials said during a public water quality standards meeting this afternoon.

Some sort of EPA proposal has been in the works for years, but a Bush administration effort was widely criticized by scientists as weakening protections for aquatic life (See here and here).

Pat Campbell, a DEP water quality assistant director, said during today’s meeting that he has not seen specific numbers on what EPA will propose. But tighter limits on selenium have been among the measures the Obama administration has been considering as part of its crackdown on mountaintop removal.

Stay tuned …

WVDEP and selenium: Stalling or stopping?

Afters years of delays, West Virginia’s Department of Environmental Protection has taken a small step toward forcing the coal industry to stop violations of the state’s water quality limits for toxic selenium.

tom-clarke21Tom Clarke, director of the WVDEP Division of Mining and Reclamation, has denied 17 requests from mining operations to extend the deadline for them to comply with selenium limits.

In some instances, WVDEP has concluded mine operators have done enough work to try to come into compliance to deserve another extension. In others, WVDEP believes approving the extension would violate the Clean Water Act’s prohibition against “backsliding” on permitted pollution limits.

Sounds pretty good, huh?

Well, wait. There’s more.

It turns not that not all of the public notices issued by WVDEP indicating it planned to approve selenium compliance extensions were sent out in error.

WVDEP plans to approve compliance extensions on at least 14 other mining permits, and public notices on those have gone out — seeking comment before WVDEP finalizes the extensions.

In the meantime, some of the companies that have been turned down by WVDEP have already filed appeals with the state Environmental Quality Board, and are hoping that board suspends the WVDEP denials before the crucial deadline of April 6, 2010. If EQB WVDEP doesn’t, then the permit limits on those operations would become final — and might mean the anti-backsliding provisions of the Clean Water Act would prohibit the mine operators from getting any further extensions.

Stay tuned …

Updated: The EQB has granted the requested stays pending a hearing on the appeals.

WVDEP stalling on selenium … again?

If you subscribe to the West Virginia Department of Environmental Protection’s public notice e-mail system, you just never know what interesting stuff is going to show up in your inbox.

Starting a few weeks ago, the notices started announcing public comment periods on requests from various coal companies to extend their deadline for stopping violations of the state’s water quality standards for toxic selenium … Riverside Energy, Litwar Processing, Independence Coal. There was a whole parade of them.

Mine operators are understandably hoping to take advantage of the loophole given them last year by lawmakers, allowing WVDEP to extend these compliance deadlines another two years, to July 1, 2012.

But WVDEP officials are now saying these public notices — I counted more than a dozen of them — went out “prematurely,” at least according to Tom Clarke, director of the agency’s Division of Mining and Reclamation. According to Tom:

There are several applications pending before the DEP at this time seeking extensions of selenium compliance schedules.  None have been granted.  Some of the applications may be denied. Even on applications that the DEP believes should be granted, it will not be in a position to act until after draft permits are advertised for public comment and USEPA has had an opportunity for comment as well.  It is possible that some of the agency’s permitting personnel have prematurely authorized applicants to advertise draft permits on this subject for public comment in cases where an agency decision to do this has yet to be made.

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WVDEP stalling on selenium … yet again

200dep_sign.jpgOver at West Virginia Public Broadcasting, Erica Peterson had an interesting story this week that debunked the persistent coal industry line that selenium pollution from mountaintop removal mines doesn’t matter because regulators allow more of it in drinking water than they do in mine runoff.

Erica quoted Dennis Lemly, the leading scientist on selenium water pollution, explaining that:

As far as the actual drinking water, the concentrations that are well below the drinking water standard can still cause problems to the fish and wildlife.

Regular Coal Tattoo readers know that Lemly has already warned that selenium pollution from Patriot Coal’s Hobet 21 complex along the Boone-Lincoln County border has pushed the Mud River watershed to the “brink of a major toxic event,”  with high levels of selenium linked to deformed fish.

But the word this week is that the West Virginia Department of Environmental Protection is moving to again give Patriot’s Hobet Mining subsidiary more time to fix its selenium violations and comply with state water quality limits.

Yesterday, WVDEP issued this notice, announcing that it was proposing to rewrite a settlement agreement with Hobet to extend the deadline for it to comply with those limits another two years — from April 2010 until July 2012.

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More selenium problems: Violations found at Ky. mines

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Here in West Virginia, a leading scientist has warned state regulators that selenium pollution from mountaintop removal mining has pushed the Mud River watershed to “the brink of a major toxic event.”

West Virginia regulators have generally bent over backwards to help the coal industry avoid having to reduce this pollution and eliminate selenium violations. But earlier this year, when lawmakers passed a bill giving coal operators three more years to comply, even the state Department of Environmental Protection thought it was going too far.

Now, evidence has surfaced that there are growing selenium problems in the coalfields over in Kentucky — and allegations that regulators there sat on the information until they got a new, industry-wide general permit approved without selenium limits or comprehensive selenium monitoring.

Environmental groups today are releasing the results of the  water monitoring and fish tissue sampling that shows violations of the state’s water quality standard for selenium and of the level of selenium experts consider safe in fish.

Some of the sampling was done in September 2007, but was not made public until recently — and not until after July, when Kentucky re-issued its “general permit” that covers water pollution discharges from coal mining operations.

Margaret Janes, a researcher with the Appalachian Center for the Economy and the Environment, had been trying for two years to get the information — and could not get it in time to submit comments about it during the review permit for that general permit:

The state of Kentucky inappropriately withheld information requested through the Freedom of Information Act. No one should have to wait nearly two years to find out what dangerous toxins are in their fish and their water.

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Coal Tattoo readers have followed the ongoing controversy over efforts by West Virginia’s coal industry to further delay compliance with water quality limits for toxic selenium pollution from coal-fired power plants. (See previous posts here,  here, here, and here).

Now, federal regulators are focusing in on selenium discharges from coal-fired power plant waste dumps, as part of the U.S. Environmental Protection Agency’s broader examination of coal ash, prompted in large part by the December disaster at a TVA ash impoundment in East Tennessee.

Juliet Eilperin reported on this in Sunday’s Washington Post. According to her story:

Faced with new evidence that utilities across the country are dumping toxic sludge into waterways, the Environmental Protection Agency is moving to impose new restrictions on the level of contaminants power plants can discharge.

Plants in Florida, Pennsylvania and several other states have flushed wastewater with levels of selenium and other toxins that far exceed the EPA’s freshwater and saltwater standards aimed at protecting aquatic life, according to data the agency has collected over the past few years. While selenium can be beneficial in tiny amounts, elevated levels damage not only fish but also birds and people who consume contaminated fish.

But the reason more selenium and metals such as arsenic are now entering U.S. waterways is because the federal government has pressed utilities to install pollution-control “scrubbing” technology that captures contaminants headed for smokestacks and stores them as coal ash or sludge. The EPA estimates that these two types of coal combustion residue — often kept in outdoor pools or flushed into nearby rivers and streams — amount to roughly 130,000 tons per year and will climb to an estimated 175,000 tons by 2015.

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Stopping selenium

With a court-ordered deadline of June 30 fast approaching, Apogee Coal Co. has agreed to spend at least $350,000 to test technology that environmental groups say will cure repeated violations of selenium pollution limits at the company’s sprawling mountaintop removal operations along the Boone-Lincoln County line.

Apogee, a Patriot Coal subsidiary, will also pay a $50,000 civil penalty to the federal government, as a result of a citizen suit brought against the company by the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy.

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Selenium: It’s the new mitigation bill

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As I’ve tried to report on what President Obama may or may not do about mountaintop removal, I’ve been thinking a lot about the mitigation bill.

Remember the mitigation bill? Those of you who haven’t been following mountaintop removal since the late 1990s probably don’t. But I sure do . And I would have thought the coal industry and its friends in the West Virginia Legislature would remember it, too.

The reason? I’m wondering if this new bill to give the coal industry yet more time to comply with water quality regulations for toxic selenium pollution might be the new mitigation bill.

By pushing for yet another way around environmental regulations, coal industry lobbyists might just be giving Obama administration officials (and citizen groups as well) a nice place to hang their hats if they’re looking to crack down on large-scale strip mining and valley fills.

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Stalling selenium: DEP says bill goes too far

West Virginia lawmakers seem intent on helping the coal industry continue to stall compliance with water quality standards for toxic selenium pollution. They’re moving forward with a bill that even Department of Environmental Protection Secretary Randy Huffman doesn’t support.

Erica Peterson of West Virginia Public Broadcasting reports that a Senate committee approved the bill (SB461)  yesterday, despite the lack of DEP support and strong opposition from the West Virginia Environmental Council.

Here’s the video:

As I reported last week, the bill would give anyone holding a water pollution permit from the state Department of Environmental Protection — in this instance, coal companies — until July 1, 2012, to comply with water quality limits for selenium.

Recall that the coal industry and West Virginia regulators have been scrambling to find ways to avoid complying with these standards for years, since federal studies found dangerous levels of selenium runoff from mountaintop removal mines in Southern West Virginia.  A federal judge and the state Environmental Quality Board have both found that the industry has been stalling its efforts to stop selenium violations. (Also see Stalling on selenium?)

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Stalling on selenium — again

A bill introduced late this week in the West Virginia Legislature would give the coal industry more time — again — to comply with water quality limits for toxic selenium pollution.

green_mike.jpgSenate Bill 461 has 20 sponsors, including Senate President Earl Ray Tomblin, D-Logan, and Energy, Industry and Mining Chairman Mike Green, D-Raleigh (who lists membership in Friends of Coal on his official biography, see photo at right).  After the bill was introduced on Thursday, it was referred to Green’s committee. Passage seems likely, since nine of the committee’s 13 members are sponsors of the bill.

The bill would give anyone holding a water pollution permit from the state Department of Environmental Protection — in this instance, coal companies — until July 1, 2012, to comply with water quality limits for selenium.

Recall that the coal industry and West Virginia regulators have been scrambling to find ways to avoid complying with these standards for years, since federal studies found dangerous levels of selenium runoff from mountaintop removal mines in Southern West Virginia.  A federal judge and the state Environmental Quality Board have both found that the industry has been stalling its efforts to stop selenium violations. (Also see Stalling on selenium?)

It’s also important to remember that the nation’s top expert on selenium pollution’s impacts on aquatic life, Dennis Lemly,  has warned that at least one West Virginia watershed, the Mud River, is “on the brink of a major toxic event” because of selenium pollution:

If waterborne selenium concentrations are not reduced, reproductive toxicity will spiral out of control and fish populations will collapse.

And thanks to Leon, whose comment on Coal Tattoo brought this bill to my attention.

Stalling on selenium?

In early December, U.S. District Judge Robert C. Chambers declined to hold Apogee Coal Co. in contempt of court for continuing to stall the cleanup of selenium pollution from a mountaintop removal mine in Logan County. But Chambers indicated he was running out of patience with the Patriot Coal subsidiary, and would hold Apogee officials to a June 30, 2009, compliance deadline.

Recall that federal officials have found widespread selenium violations downstream from mountaintop removal operations, and the nation’s leading scientist of the issue warns that at least one West Virginia waterway is on the “brink of a major toxic event” because of selenium violations.

Earlier this month, Apogee lawyers filed a monthly report with Chambers, and told the judge the company was “attempting to comply in good faith” with the court’s deadlines.

But now, internal company documents filed in the case indicate Apogee has been, in effect, keeping two sets of books.

Apogee has been giving Chambers one calendar, showing that it will meet the court’s deadlines.  At the same time, the company’s consultants have been keeping a “realistic schedule” that delays compliance until at least September — three months after the court’s deadline.