WEST VIRGINIA RECORD

HUNTINGTON –- Patriot Coal companies must deliver a $45 million letter of credit to U.S. District Judge Robert Chambers to guarantee their compliance with water quality permits.

In a Sept. 1 order, Chambers wrote that he might increase or decrease the amount based on steps Apogee Coal and Hobet Mining take or don't take.

He ordered Apogee Coal to comply with effluent limits for selenium at three locations by March 1, 2013.

Apogee Coal must install a fluidized bed reactor as its engineers recommended, he wrote.

He ordered Hobet Mining to comply with selenium limits by May 1, 2013.

He criticized the companies for failing to pursue the recommendations of their experts, particularly those of consultants at CH2Mhill.

"Had the appropriate steps been taken toward compliance, the court finds that defendants could and should have been at this point in the research, development, installation and compliance process much earlier," he wrote.

He held Apogee Coal in contempt, finding it has not exercised reasonable diligence to comply with a consent decree he signed.

He wrote that he would promptly issue an opinion on the reasons and authority for his finding of contempt.

Apogee Coal and Hobet Mining entered into consent decrees with Ohio Valley Environmental Coalition and West Virginia Highlands Conservancy last year.

This year, Apogee Coal and Hobet Mining moved to modify the decrees.

Chambers heard arguments on Aug. 31, and chose to take strong action.

"A party seeking modification of a consent decree must establish a significant change in either factual conditions or in law," he wrote.

"The court finds that circumstances have certainly changed since the entry of the consent decrees," he wrote.

"There is more, and better, information available regarding the viability of various technologies to treat selenium in the context of surface mining operations," he wrote.

"Further, much of this information has been produced as a result of the efforts on the part of defendants' parent company, Patriot Coal Corporation," he wrote.

He wrote that failure to follow recommendations of experts was the principal reason that viable technologies have only recently been discovered.

He ordered Hobet Mining to submit a treatment plan by Oct. 1.

He asked both sides to nominate wastewater treatment experts to serve as special master.

He took under advisement a motion from the nature groups for fees and costs.

He told them to file a formal petition for fees and costs once details of the remedies have been fully finalized.