Chambers

HUNTINGTON – Massey Energy and Arch Coal mines have discharged selenium into streams in violation of water quality permits for a year and must pay civil penalties, U.S. District Judge Robert Chambers has ruled.

On March 31, Chambers rejected their claim that the state Environmental Quality Board stayed the effective date of new standards for selenium, an element related to sulfur. He wrote that the board exceeded its statutory authority.

He wrote that when the U. S. Environmental Protection Agency objects to a state permit, a public hearing process governs relations between the state and EPA.

"If a permittee can utilize the state administrative process to render the effect of this objection process meaningless by seeking a stay from an administrative review board, rather than seeking the public hearing provided for under the federal Clean Water Act, it is in clear contravention of federal law and contrary to what Congress intended," Chambers wrote.

He plans a hearing on the scope of relief for Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, Coal River Mountain Watch, and Sierra Club.

"Although monetary penalties are being sought, much of the harm to the environment is already taking place; legal penalties are inadequate to compensate plaintiffs for their injury," he wrote.

The groups seek to enforce permits the state Department of Environmental Protection issued for mines in Mingo, Logan, Boone, and Raleigh counties.

The permits would have toughened the selenium standard as of last April 5.

Massey and Arch requested extensions as the deadline approached, and the department denied the requests. They appealed to the Environmental Quality Board, and asked to stay the effective date.

The board granted a stay until further ruling by the department or the board.

The nature groups sued Arch subsidiaries Coal-Mac and Mingo Logan Coal in federal court, and they sued Massey subsidiaries Independence Coal and Jacks Branch Coal.

Massey and Arch challenged the standing of the groups, but declarations of members satisfied Chambers on that score.

"For example, Maria Gunnoe details a lifelong use of Beech Creek and Spruce Fork, and describes how ongoing pollution affects her current use," he wrote.

He wrote that each person's use of the relevant waters predated the action in his court. He wrote that the declarations gave meaning to an assertion that the groups sued to vindicate private interests, not some ethereal public interest.

He wrote that they satisfied the evidentiary burden to establish continuous or intermittent violations. He wrote that the state review process rendered EPA review meaningless.

He found no issue of fact as to whether Massey and Arch violated requirements to construct and install selenium treatment facilities.

Massey and Arch scored a zero with a suggestion that Chambers might abstain to avoid intruding on complex state administrative processes.

"This is not an area of fact requiring the regulatory expertise that has been delegated to the state under the Clean Water Act," he wrote. "This is an area of law where this court has expertise – statutory interpretation.

"The Court is confident in its ability to determine these questions of law."

He asked both sides to propose schedules for hearings on penalties and relief.

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