This article originally provided by The Charleston Gazette

February 10, 2008

Environmental groups charge DEP with protecting Hobet Mining

CHARLESTON, W.Va. (AP) -- An environmental group is charging the West Virginia Department of Environmental Protection with failing to limit how much selenium is dumped into tributaries of the Mud River.

Last week, environmental lawyers Derek Teaney and Joe Lovett filed a lawsuit against Hobet Mining, charging that its Boone County operations were in violation of the Clean Water Act.

The suit was filed on behalf of the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition, who believe the DEP has failed to protect the public, and a judge should let citizens seek their own injunction against the coal company.

"WVDEP's filing of the Boone County action must be seen in light of the agency's ongoing collusion with the coal industry to undermine the requirements of the Clean Water Act in West Virginia,'' Teaney and Lovett wrote in the lawsuit.

"In fact, WVDEP brought the Boone County action not to require Hobet to comply with the Clean Water Act or the Surface Mining Control and Reclamation Act, but to protect Hobet from (the citizen groups') attempt to enforce the permit in federal court.''

Randy Huffman, director of the DEP Division of Mining and Reclamation, says he doesn't know why his agency hasn't moved forward in its lawsuit against Hobet, but he's instructed agency lawyers to "pick up the pace.''

"We should have been moving faster on this than we have been,'' Huffman said.

The wrangling over DEP's Hobet lawsuit is part of a broader battle between agency officials, the coal industry and citizen groups over selenium pollution.

In November 2006, Hobet Mining was warned by citizen's groups about the selenium problem. Federal law requires citizens to give companies and regulators such notices -- and 60 days to fix the problem -- before filing a Clean Water Act lawsuit.

On Jan. 12, 2007, 60 days after notice was given, the state DEP filed its own selenium lawsuit against Hobet Mining.

The legal loophole that Hobet has benefited from states that if DEP "has commenced and is diligently prosecuting'' its own case the citizen groups are prohibited from suing.