Environmental groups sue Argus over selenium

By Jessica M. Karmasek | Oct 6, 2011

HUNTINGTON -- Three environmental groups are suing Argus Energy LLC, alleging the company has discharged and continues to discharge selenium, a pollutant considered toxic by the federal Environmental Protection Agency.

The Ohio Valley Environmental Coalition Inc., West Virginia Highlands Conservancy Inc. and Sierra Club filed an 18-page complaint Tuesday in the U.S. District Court for the Southern District of West Virginia.

Argus, a Kentucky company doing business in Mingo County, owns and operates the Copley Trace No. 2 surface mine.

The environmental groups allege the company has violated the Federal Water Pollution Control Act, or Clean Water Act, and the Surface Mining Control and Reclamation Act.

The plaintiffs also allege that Argus has violated the conditions of a state Department of Environmental Protection order.

The groups say that the company's discharges of "unlawful quantities" of selenium into the waters adjacent to its mine sites violate the performance standards under SMCRA and the terms and conditions of its surface mining permits.

According to their complaint, the WVDEP filed action against Argus in June 2010 for violations at its Copley mine.

However, the Mingo County suit has languished, "without any meaningful action for over a year," the groups say.

The groups allege the WVDEP is "not diligently prosecuting" an action against Argus.

"Plaintiffs file notice, the WVDEP over-files -- causing a delay in Plaintiffs' action -- the WVDEP then sits on their 'enforcement' action, literally doing nothing, all the while allowing the permittee to continue discharging a toxic pollutant into the state's waters," they wrote.

They go on to allege that the WVDEP's lawsuit is "not reasonably calculated to require compliance."

"It is rather a straightforward attempt to delay and/or prevent a citizen action, like the instant case," the groups wrote.

"Because the cost of treatment for selenium is very high, WVDEP's calculated failure to enforce the Clean Water Act against Hobet has resulted in a significant financial windfall for Hobet at the expense of the rule of law and of the State's waters."

The groups, which decided to take their own action against the company, say they are suffering from injuries to their "aesthetic, recreational, environmental and/or economic interests" as a result of Argus' discharges.

They are asking the court to: declare that Argus has violated and is in violation of the Clean Water Act and SMCRA; enjoin Argus from operating its facilities "in such a manner as will result in" additional violations; order the company to comply with all effluent limitations, monitoring and reporting requirements; order it to comply with all requirements of its WVDEP order and permits; order it to pay civil penalties of up to $37,500 per day for each Clean Water Act violation; and order it to conduct monitoring and sampling to determine the environmental effects of its violations.

The groups are also seeking attorney and expert witness fees.

J. Michael Becher, Derek O. Teaney and Joseph M. Lovett of Appalachian Mountain Advocates in Lewisburg are representing the plaintiffs.

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