In the most significant judicial decision to date to address selenium pollution from coal mines in Appalachia, a federal judge has ordered Patriot Coal to prepare $45 million in secured credit to cover the costs of treating the pollutant at two of its coal mines in West Virginia. Judge Robert Chambers of the United States District Court for the Southern District of West Virginia held Patriot Coal in contempt Tuesday for the company’s failure to comply with the terms of an earlier court order, ordered the company to come into compliance with the selenium limits in its permits within approximately two and a half years, and ordered the company to immediately post a letter of credit for $45 million. Evidence presented at trial established that it will cost the company at least that amount of money and take approximately that amount of time to build a facility to treat selenium from three waste pipes at just one of the mines, the Ruffner surface mine in Logan County. Treatment at the Hobet 22 mine in Lincoln County is expected to cost at least an additional $15 million. This ruling sets important precedent for other coal companies to prevent their toxic mining waste from polluting nearby streams and communities.
“This court order is a game changer in our fight to protect streams and communities in West Virginia and to hold coal mining companies accountable for their pollution,” said Ed Hopkins, Senior Washington, D.C. Director of the Sierra Club. “This sets the precedent that coal companies can and must treat their discharges of selenium and other toxic pollutants, and state regulators must do more than continually grant compliance extensions.”
Selenium, a toxic element that causes reproductive failure and deformities in fish and other forms of aquatic life, is discharged from many surface coal mining operations across Appalachia, and is commonly found in coal combustion byproducts like coal ash. Selenium bio-accumulates in the tissues of aquatic organisms, and experts predict that waterways across Appalachia could be on the brink of collapse due to increasing levels of the pollutant.
“This ruling should make clear to the coal industry and the regulatory agencies that mining coal in high-selenium seams is not economically viable and that the true costs of mountaintop removal mining are higher than the companies want us to think,” said Dianne Bady, Co-Director of the Ohio Valley Environmental Coalition. “Let’s hope the companies finally realize that they should just leave high-selenium coal like this in the ground.”
“Coal companies have been saying for years that there isn’t any way to treat the selenium that’s coming out of their surface mines,” said Cindy Rank of the West Virginia Highlands Conservancy. “They’re going to have a much harder time making claims like that anymore, and will finally have to start taking responsibility for their pollution.”
“This is a huge victory for those who want to see clean streams and healthy communities in West Virginia,” said Vernon Haltom, Co-Director of Coal River Mountain Watch. “These coal companies are going to have to clean up their acts and stop treating our public water as their private waste dumps.”
Earlier this month, Judge Chambers held a combined hearing on claims brought by the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy, and the Sierra Club related to selenium discharges from both the Ruffner and Hobet 22 coal mines. These groups, as well as Coal River Mountain Watch, are currently prosecuting additional cases against Patriot and its subsidiaries, as well as other coal mining companies including Arch Coal and Massey Energy, for discharges of selenium from their surface mines in excess of permit limits.
The plaintiff groups are represented by Joe Lovett and Derek Teaney of the Appalachian Center for the Economy and the Environment, and Jim Hecker at Public Justice.
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