The Manchin administration must revisit two dozen orders that gave coal operators three additional years to fix selenium pollution violations, a state appeals board ruled Thursday.
Environmental Quality Board members unanimously ruled that the Department of Environmental Protection wrongly gave the coal industry a blanket extension of time to comply with selenium limits.
In a 46-page decision, board members ordered DEP to come up with site-specific compliance schedules within 30 days. Companies affected include subsidiaries of Massey Energy, Magnum Coal and CONSOL Energy Inc., among others.
Board members sided with coal company lawyers on a variety of legal issues in the case, but also harshly criticized the industry and DEP for a slow and ineffective response to growing concern over selenium runoff from mining operations.
"Too much time has been wasted and too little has been done to address [the] problem," the board ruling said.
The board decision is the second time in two weeks that the DEP has been faulted for lax handling of coal industry selenium pollution.
On May 27, U.S. District Judge Robert C. Chambers threw out a DEP compliance order that gave Apogee Coal Co. three more years to clean up selenium violations at a mine in Logan County.
Chambers said that DEP had wrongly issued that order without a public comment period. The judge gave Apogee, a Magnum Coal subsidiary, 30 days to submit a compliance plan and another 90 days after that to implement the plan or show the judge why it could not do so.
DEP Secretary Randy Huffman noted that the board ruling said that his agency could stick with its current deadline - 2010 - for coal operators to actually comply with their selenium limits.
But Huffman also conceded that DEP had waited too long to take action to force the coal industry to clean up the problems.
"I think everybody was asleep at the wheel from the beginning," Huffman said. "The mistake was we let selenium slide for so long without applying the pressure that we are applying now."
In its ruling, signed by Chairman Ed Snyder, the environmental board made it clear that it thinks DEP and the industry are still not moving quickly enough.
"What is perhaps even more amazing is how little the WVDEP seems to expect from the coal industry," the ruling said. "WVDEP and the coal industry are asking for more time and yet the lack of urgency continues."
Board members ordered DEP to review each permit and "design a compliance schedule that is site and permit specific."
"The compliance schedule should include meaningful milestones and requirements to demonstrate what the permittee is doing to achieve compliance,' the ruling said. Companies should report lists of contractors and financial resources assigned to the job, the board recommended.
Selenium, a naturally occurring element found in many rocks and soils, is an antioxidant that is needed in very small amounts for good health. But in slightly larger amounts, selenium can be highly toxic. In aquatic life, very small amounts of selenium have been found to cause reproductive problems.
In 2003, a broad federal government study of mountaintop removal coal mining found repeated violations of water-quality limits for selenium in water downstream from mining operations.
Coal industry lobbyists have tried - so far unsuccessfully - to persuade lawmakers and the DEP to relax West Virginia's selenium limits. Last year, the Manchin administration moved instead to give nearly 100 coal operations three more years to fix violations of their selenium permit limits. It was the second round of compliance extensions given by DEP for coal industry selenium limits, the first coming in 2004.
Subsequently, the West Virginia Highlands Conservancy, the Ohio Valley Environmental Coalition and Coal River Mountain Watch challenged two dozen of those DEP compliance orders before the Environmental Quality Board.
In its ruling, the board said that evidence before it - specifically testimony from coal industry consultant Mindy Armstead - "indicated that streams with selenium concentrations well above" the state limit "do not show signs of environmental harm like those associated with the Belews Lake study."
Belews Lake, N.C., was contaminated by selenium in wastewater from a coal-fired power plant during the mid-1970s and toxic effects on the fish there were studied for more than two decades.
Selenium accumulated up the food chain, and caused severe reproductive problems in fish. Studies found that 19 of 20 species of fish were rendered sterile. Dennis Lemley, who is considered the nation's foremost expert on selenium water pollution and its effects of aquatic life, conducted the Belews Lake studies.
In a second federal court case pending before Chambers, Lemley has warned that pollution from another Magnum operation is dangerously poisoning Mud River Fish, leaving some with serious deformities. Fish samples taken by state officials showed some specimens with two eyes on one side of the head, and others with curved spines, according to a report filed by Lemley.
"The Mud River ecosystem is on the brink of a major toxic event," Lemley wrote. "If waterborne selenium concentrations are not reduced, reproductive toxicity will spiral out of control and fish populations will collapse."
To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.