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.
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I know this is “out there” but any coal executive who delays cleaning up selenium pollution should be forced to drink the polluted water on a daily basis until it is cleaned up.
Elizabeth
We, on a daily basis from our water systems, are drinking up to ten times the amount of selenium allowed to be discharged from a mine site . . . . I al ot of cases they may rather drink that water
They say a picture is worth a thousand words … I’d say that photo of the fish larva is worth a whole lot more than that. Bear in mind, that’s just a fish larva. Can anyone imagine the fuss if that was a human embryo? Somehow I don’t think there would be quite as much dilly dallying … but then again, this is West Virginia, where Coal is King …
http://www.pbs.org/now/shows/408/video.html
This is video taken by government investigators in 1997 when 176 sheep were found dead near a mine site.
The trouble was traced to selenium, a mineral which is released from the rock during phosphate mining. In tiny amounts, selenium is part of a healthy diet. But larger amounts or prolonged exposure can be toxic. News stories from the time show that horses that came into contact with selenium near another mine had to be euthanized.
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This coming October 9th, the Circuit Court of Appeals will hear oral arguments on our legal challenge to the permitting of the Smoky Canyon Mine expansion. We hope to know by the end of the year if that challenge is successful.
The Issue: Phosphate mines in the southwest corner of Greater Yellowstone have scarred the landscape and dumped poisonous selenium into area streams in substantial amounts, killing horses, livestock, and wildlife. It has also ruined habitat of the struggling cutthroat trout. A year ago one of the companies, Simplot, was given partial approval to expand its Smoky Canyon Mine into the Sage Creek roadless area. Having already exceeded federal and state water-quality standards, they can’t advance until they clean up some of their Superfund mess. Click here to see a video of selenium’s toxic effects. In the meantime other companies wanting to build new mines in roadless areas and along the Blackfoot River, with no meaningful cleanup of past mining operations.
Elizabeth and em2 …
We’re talking about two different issues here — the levels of selenium in water that will harm human beings and the levels that will harm aquatic life … while what em2 says may be correct, it’s just not relevant.
Please see the following explanation of this, which was part of a comments discussion on Coal Tattoo more than a year ago, in May 2009
http://blogs.wvgazette.com/coaltattoo/2009/05/04/stopping-selenium-pollution-the-debate-continues/
Ken Ward Jr. says:
May 14, 2009 at 11:02 am (Edit)
Brandon,
A couple of things — I’m not aware of Greenpeace being involved in the selenium issue in West Virginia or elsewhere in the coalfields. I’m assuming you’re just throwing them out there as a generic environmental group that you happen to not think highly of.
But, your post raises a couple of questions …
First, to be clear: The issue with selenium discharges from mountaintop removal mines is that they are violating water quality standards intended to protect aquatic life.
In West Virginia, those standards are 5 parts per billion for chronic exposure and 20 parts per billion for acute. In general, those have been translated by DEP into permit limits on the order of 4.7 parts per billion monthly average and 8.2 or so daily maximum.
While you’re correct that the WHO organization guidelines you mention do suggest a weaker standard for drinking water — the equivalent of 10 parts per billion — that’s really beside the point.
Why?
First, because the issue here is effects on aquatic life. And our state government has determined that limits of 5 ppb and 20 ppb in the water are needed to protect aquatic life. Many mining operations are violating those limits.
Second, if your concern is drinking water, then why aren’t you advocating that West Virginia tighten its human health criteria to match the WHO guidelines?
Currently, West Virginia’s human health WQS for selenium is 50 ppb, the same as EPA’s recommended Maximum Contaminant Level (See http://www.epa.gov/ogwdw/contaminants/dw_contamfs/selenium.html).
Shouldn’t West Virginia adopt the more stringent 10 ppb WHO guideline you are suggesting is something we should all read?
Thanks for reading Coal Tattoo and for commenting.
Ken.