Our Lawsuit: DEP Protecting Coal Industry’s Illegal Pollution

by Ken Ward Jr., excerpted from Feb. 10, 2008, Charleston Gazette

In November 2006, environmental group lawyers warned Hobet Mining that its Boone County operations were dumping too much selenium into tributaries of the Mud River.

Lawyers Derek Teaney and Joe Lovett told Hobet that the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy planned to sue the company over its alleged permit violations.

  The formal notice of intent to sue gave the company 60 days to fix its pollution problems. Federal law requires citizens to give companies and regulators such notices before filing a Clean Water Act lawsuit.

  On Jan. 12, 2007 - the 60th day after the Hobet notice - the West Virginia Department of Environmental Protection filed its own selenium lawsuit against Hobet Mining… (Citizens can’t sue if the agency is taking action.)

  DEP has done nothing to move the suit forward toward a court order that would force Hobet to comply with its permit limits for selenium, court records show.

So last week, Teaney and Lovett filed their own lawsuit against Hobet. They argue that DEP has dropped the ball, and that 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 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."

Last week, DEP Mining Director Randy Huffman said he couldn’t explain why his agency has not moved forward its lawsuit against Hobet. Huffman said he had instructed agency lawyers to "pick up the pace."

…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 humans, it can cause hair loss, nail brittleness and neurological problems such as numbness.

In their new federal court suit, Teaney and Lovett noted the DEP didn’t review coal company water pollution discharge reports for nearly five years, a move that allowed the industry to avoid thousands of citations and fines.

"As a result, WVDEP has abdicated its duties to administer the Clean Water Act and has essentially stopped assessing civil penalties against coal operators for violating the act," Teaney and Lovett wrote.

"This attempt to protect the coal industry, which it is charged with regulating, is the logical conclusion of the WVDEP’s general failure to enforce the Clean Water Act against this industry."