Judge Again Allows Selenium Water Pollution Lawsuits
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
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
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
"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
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.