Copenhaver

CHARLESTON – Nature groups can challenge a water quality agreement between Arch Coal and government regulators but they must do it quickly.

U.S. District Judge John Copenhaver granted their motion to intervene in his June 22 review of a consent decree Arch Coal and the government adopted, but he denied a request for eight weeks of discovery.

He directed the groups to meet with government lawyers by July 20, "to narrow any areas of disagreement respecting the need for further discovery."

He wrote that if they deem any further discovery necessary they can file a motion, "in a particularized and specific way," by July 25.

Ohio Valley Environmental Coalition, Sierra Club and West Virginia Highlands want to increase a $4 million civil penalty Arch Coal agreed to pay.

They also suspect water treatment plans in the decree won't eliminate the flow of toxic element selenium into streams.

They seek an evidentiary hearing, but Copenhaver deferred consideration of it.

He wrote that he didn't have the benefit of their views on details assistant attorney general Ignacia Moreno provided in May.

Moreno denied their claim that the penalty was too small to recover benefits Arch Coal gained by not complying with water permits.

She attached a declaration of government scientist Chad Harsh that the penalty resulted from intense negotiations and considerations including economic benefit, gravity of harm, litigation risk, and civil penalties in similar settlements.

She wrote that the groups had multiple opportunities to present their views, and that they submitted a comment letter of nearly 100 pages.

She brushed off their charge that negotiations were held behind closed doors.

"Yet this is true for the vast majority of negotiations, and there is no requirement that the government allow third parties to participate in settlement negotiations," she wrote.

She wrote that the United States made changes to the decree in response to some of their comments and responded to other comments.

Ohio Valley Environmental Coalition has 1,500 members and West Virginia Highlands Conservancy has 1,800, according to Copenhaver.

He wrote that Sierra Club has about 1,900 members in West Virginia and more than 600,000 nationwide.

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