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This article originally provided by
The
Charleston Gazette
By Ken Ward Jr.
Staff writer
In November 2006, environmental group lawyers warned Hobet Mining
that its Boone County operations were dumping too much selenium into
tributaries of the Mud River.
Lawyers Derek Teaney and Joe Lovett told Hobet that the West
Virginia Highlands Conservancy and the Ohio Valley Environmental
Coalition planned to sue the company over its alleged permit
violations.
The formal notice of intent to sue gave the company 60 days to fix
its pollution problems. Federal law requires citizens to give
companies and regulators such notices before filing a Clean Water
Act lawsuit.
On Jan. 12, 2007 - the 60th day after the Hobet notice - the West
Virginia Department of Environmental Protection filed its own
selenium lawsuit against Hobet Mining.
Under the law, if DEP "has commenced and is diligently prosecuting"
its own case, the citizen groups are prohibited from suing Hobet.
Randy Huffman, director of the DEP Division of Mining and
Reclamation, said that his staff attorneys aren't following
environmental group lawyers around.
"It's my understanding that we're supposed to be enforcing the law
and enforcing the standards in those permits, and that's the reason
for taking the action we've taken," Huffman said.
But the January 2007 lawsuit isn't the only time that DEP officials
have stepped in and effectively blocked a citizen effort to force
coal companies to reduce selenium pollution.
Three months after that suit, in March 2007, Teaney and Lovett filed
more legal notices. This time, they targeted six more permits,
including four new permits that weren't part of their initial
lawsuit notices.
By mid-May, DEP lawyer Tom Clarke had sought to amend his agency's
pending suit in Boone Circuit Court, to add the new permits targeted
by the environmentalists.
Since that May 18, 2007, filing, DEP officials have taken no action
in the case. They haven't asked for an injunction. They haven't
taken depositions or sought records from Hobet Mining.
DEP has done nothing to move the suit forward toward a court order
that would force Hobet to comply with its permit limits for
selenium, court records show.
So last week, Teaney and Lovett filed their own lawsuit against
Hobet. They argue that DEP has dropped the ball, and that a judge
should let citizens seek their own injunction against the coal
company.
"WVDEP's filing of the Boone County action must be seen in light
of the agency's ongoing collusion with the coal industry to
undermine the requirements of the Clean Water Act in West Virginia,"
Teaney and Lovett wrote.
"In fact, WVDEP brought the Boone County action not to require Hobet
to comply with the Clean Water Act or the Surface Mining Control and
Reclamation Act, but to protect Hobet from [the citizen groups']
attempt to enforce the permit in federal court."
Last week, Huffman said he couldn't explain why his agency has not
moved forward its lawsuit against Hobet. Huffman said he had
instructed agency lawyers to "pick up the pace."
"We should have been moving faster on this than we have been,"
Huffman said.
The wrangling over DEP's Hobet lawsuit is part of a broader battle
between agency officials, the coal industry and citizen groups over
selenium pollution.
Selenium, a naturally occurring element found in many rocks and
soils, is an antioxidant that is needed in very small amounts for
good health. But in slightly larger amounts, selenium can be 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 government study of mountaintop removal
coal mining found repeated violations of water quality limits for
selenium in the water downstream from mining operations. The
following year, a 2004 report from the U.S. Fish and Wildlife
Service found troubling levels of selenium in fish downstream from
large surface mines.
Coal industry lobbyists tried - so far unsuccessfully - to persuade
lawmakers and the DEP to relax West Virginia's water quality rules
for selenium.
The Manchin administration moved instead to give nearly 100 coal
operators three more years to fix violations of the state's selenium
limits. Environmental groups are challenging about two dozen of
those DEP compliance orders before the state Environmental Quality
Board.
In their new federal court suit, Teaney and Lovett noted the DEP
didn't review coal company water pollution discharge reports for
nearly five years, a move that allowed the industry to avoid
thousands of citations and fines.
"As a result, WVDEP has abdicated its duties to administer the Clean
Water Act and has essentially stopped assessing civil penalties
against coal operators for violating the act," Teaney and Lovett
wrote. "WVDEP's Boone County action goes even further than its
previous practice of turning a blind eye to violations of the Clean
Water Act; the Boone County action was an active attempt to protect
Hobet from being compelled to comply with the CWA by plaintiffs.
"This attempt to protect the coal industry, which it is charged with
regulating, is the logical conclusion of the WVDEP's general failure
to enforce the Clean Water Act against this industry."
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.
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