Selenium occurs naturally in the environment, but it shows up in more
concentrated amounts when rock and dirt from surface mine sites is dumped into
valleys and streams. In small amounts, selenium is harmless, but some studies
have found that in larger amounts it's toxic to aquatic life and humans.
For the past three years, state and federal regulators have
been arguing about how much selenium coal companies should be allowed to legally
discharge into West Virginia’s
waterways.
The original deadline for permits to comply with federal law
was this past April. But a bill passed by the Legislature gave the state
Department of Environmental Protection the authority to ask for more time.
Letters
telling the mine operators that there were no grounds for the EPA to grant an
extension were sent out last Thursday.
The EPA had sent out general objection letters in March,
telling the operators that the agency had concerns about the permit
modifications. In an interview at that time, Region 3 spokeswoman Bonnie Smith
laid out the two reasons the EPA could legally grant an extension.
"Is the reason that these companies did not meet the deadline
in their compliance schedule related to an act of God, a strike, a flood, a
materials shortage or any sort of events the permittee has little or no control
over?" she asked.
"The other key question that we have to find out about is, because it’s a
requirement under the Clean Water Act, is what kind of assurances do we have
that the next round of treatment will lead to compliance?"
The onus was then on the DEP to prove that the permit
extension was legal. Tom Clarke is the Director of the Division of Mining and
Reclamation at the West Virginia DEP. In an April interview, he said the 13 permit modifications
the DEP sent to the EPA were chosen from a group of about 30.
“The ones that were rejected fall into probably two to three
categories,” he said. “The first category, or two, are those that either did
nothing during an existing three-year compliance schedule to comply on the
permit, or undertook only token efforts to comply.”
Each of the letters outlines specific objections with the permit in question,
but the letters all have one thing in common. In each case, the EPA decided
that the company hadn’t had an extenuating circumstance to merit more time to
design selenium treatment .
One of the problems often cited by operators is the
challenge in removing selenium from materials before it gets into the
waterways.
Regulators and environmentalists point to treatments like reverse osmosis to
remove selenium before it’s released into waterways. Mining companies say this
treatment is prohibitively expensive.
The letters say, quote, “Although EPA acknowledges the
challenges of building treatment for selenium, the permittee has already had
since 2004 to come into compliance with their selenium limitations.”
But the fight isn’t over yet. Now, the EPA has started a clock.
Tom Clarke says his department has another 90 days to try to get the permits
approved.
"There are permits in the past that have been withdrawn during that additional
90 period," he said. "But if at the end of that 90-day period we have not satisfied the
EPA’s specific objection to a draft permit, and this is just in general, then
authority to act on that permit application passes from the DEP to the U.S.
EPA"
Ten of the mines affected are Arch Coal subsidiaries. The
others are owned by Argus Energy, International Coal Group and Southern West
Virginia Resources. Arch Coal did not return requests for comment; Argus and
ICG declined comment.