Judge Again Allows Selenium Water Pollution Lawsuits

Charleston Gazette
20 December 2013
By Ken Ward Jr.

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.

In 2003, a broad federal government study of mountaintop removal mining found repeated violations of water quality standards for selenium. The following year, a U.S. Fish and Wildlife Service report warned of more selenium problems downstream from major mining operations. One report from a top selenium expert has warned that the pollution from Patriot's Hobet 21 site has left the Mud River ecosystem "on the brink of a major toxic event."

Citizen group lawsuits over selenium violations have prompted, among other things, a move by Patriot Coal to phase out its use of large-scale surface mining in Central Appalachia.

Coal-friendly lawmakers and Gov. Earl Ray Tomblin have tried to blunt the impact of citizen group actions, in part with a bill passed last year that said coal companies would be deemed in compliance with state water pollution laws if they meet discharge limits for specific chemicals listed in their permits.

Industry officials argued that this language would protect them from citizen lawsuits that targeted selenium. In some cases, water pollution permits don't specifically limit selenium discharges, even though the state has a separate in-stream water quality standard for the substance.

In August, Chambers had ruled that the legislation did not protect an Alpha Natural Resources operation from a citizen group suit. The judge noted that state regulations also require all coal-related water pollution permits to prohibit any mining discharges from causing in-stream water quality violations.

Lawyers for Fola Coal had tried to argue that state officials in the mid-1980s improperly approved the rule requiring all permits to prohibit water quality standard violations. Chambers rejected that argument.
"Ascertaining the intent and method behind the addition of the water quality standards language to the final version of the rules is challenging because nearly thirty years have passed and the administrative record regarding the regulations is far from complete," the judge wrote.

"Given the incomplete record before the Court and the lack of concrete evidence showing that the regulations were improperly promulgated, the Court will not now second-guess those regulations so long after their submission to the state rule-making process and approval by the state legislature," he wrote. "Although the Court cannot be certain why the water quality standards language was added, the Court finds that Defendant has failed to meet its burden of demonstrating that the rule should now be overturned as improperly promulgated."

Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.