This news story originally provided by The Charleston Gazette

Mines might get more time on selenium

By Ken Ward Jr.
Staff writer

Four years after federal regulators reported troubling levels of selenium leaching from mountaintop removal mines in Southern West Virginia, the Manchin administration is proposing to give dozens of operations three more years to stop the pollution.

Environmental Protection Secretary Stephanie Timmermeyer also moved to head off a citizen lawsuit that could have forced companies to fix the problem faster.

The state Department of Environmental Protection’s actions are the latest in a series of moves since 2003 to delay dealing with what some experts say is a serious water quality problem.

Last month, DEP proposed to give more than 90 mining operations three-year “compliance schedules” to meet state pollution limits for selenium.

Agency officials issued public notices for each permit, and are accepting public comments on the proposals.

On Feb. 14, Joe Lovett and Derek Teaney, lawyers at the Appalachian Center for the Economy and the Environment, submitted a letter to comment on the sweeping DEP action.

Lovett and Teaney called the move “a systematic and illegal suspension of West Virginia’s water quality standard for selenium for the coal industry.

“Many of your recent actions in regard to selenium discharges from coal mines, including the proposal to issue these compliance schedules, are unconscionable,” Lovett and Teaney wrote.

Randy Huffman, director of the DEP Division of Mining and Reclamation, said that his office is trying to give mine operators more time to come up with ways to treat their selenium discharges.

“We are trying to deal with a very difficult parameter and a very difficult issue in West Virginia,” Huffman said. “We’re trying to deal with it in a proactive way, rather than in a reactive way.”

Selenium is a naturally occurring mineral element that is found in many rocks and soils. In very tiny amounts, it is an antioxidant and is needed for good health.

But in only slightly greater amounts, selenium is highly toxic. In humans, it can cause hair loss, nail brittleness and neurological problems such as numbness. In aquatic life, very small amounts of selenium have been found to cause reproductive problems.

In 2003, a broad federal study of mountaintop removal found repeated violations of water quality limits for selenium in the water downstream from mining operations. Violations were found in the Upper Mud River, Island Creek, Twentymile Creek, Spruce Fork and Clear Fork watersheds.

The following year, in 2004, the U.S. Fish and Wildlife Service produced its own report, finding troubling levels of selenium in fish downstream from mountaintop removal mines.

After the federal reports, coal industry officials tried unsuccessfully to persuade lawmakers and DEP to relax West Virginia’s water quality rules for selenium.

During one industry meeting in January 2004, coal company lawyer Bob McLusky said that the existing standard was too stringent. McLusky said that the industry proposal would “ensure protection of aquatic life, and make sure that we are not automatically in violation of water quality standards for selenium in West Virginia.”

In one 2004 permit appeal, the West Virginia Highlands Conservancy tried unsuccessfully to force DEP to crack down on selenium discharges.

Since then, environmentalists have been quietly researching the issue, and trying to push federal and state regulators to take some action about the ongoing violations.

Then in November 2006, Lovett and Teaney filed two formal notices of intent to sue mine operators on behalf of the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition to force them to stop violating selenium standards.

In response, DEP lawyers filed their own lawsuit against one of the two operators, Hobet Mining, that Lovett and Teaney had targeted.

By doing so, DEP headed off the ability of the environmental groups to sue.

Under the Clean Water Act, citizen groups can file their own lawsuits against companies to try to stop ongoing pollution violations. First, they have to give the companies and regulators formal notice of their intent to sue. If regulators step in and take action themselves, the citizens have little chance of winning a lawsuit.

In their letter to Timmermeyer, Lovett and Teaney asked that DEP officials “abandon the reckless path down which you have started.”

“Please do not attempt to grant the coal industry the right to evade the Clean Water Act,” they said.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.