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.

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:

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.

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.

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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.

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 …

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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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 …

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 …