Type: Law Bulletins
Date: 11/03/2010

Selenium Effluent Limit Enforcement Presents Novel Issues for Court

A West Virginia District Court judge dispelled the contention of some that federal courts are not up to the task of resolving complex technical environmental matters.  In Ohio Valley Environmental Coalition, Inc. v. Apogee Coal Company, LLC, the defendant Apogee Coal asked the Court to modify a 2009 Consent Decree it had entered with citizen suit plaintiffs to settle alleged West Virginia NPDES selenium permit exceedances.

Selenium is a naturally occurring inorganic element in soils, but can be toxic at elevated concentrations.  In this case, the surface mining activities of the defendant resulted in increased concentrations of selenium as it leached out of ore and soils to contaminate surface water.

Because selenium has only recently been regulated through effluent limits for surface mining operations, the key technical issue raised in the Consent Decree enforcement was the “uncertainty” surrounding effective technologies to remove selenium from contaminated surface water.  “[T]o date, no technology has proven successful at full scale.”  The defendant had entered into the novel Consent Decree with its stated research-oriented objective:  to demonstrate the technical and economic feasibility of vibratory shear enhanced membrane technology or other technologies effective in this potentially industry-wide application.  Typically, environmental Consent Decrees require more established technologies for compliance with permit terms.

The defendant in this case found itself repeatedly missing deadlines and obtaining lackluster results from its delayed studies and pilot projects.  Its argument that there was no feasible technology to remove selenium, thereby excusing it from compliance with the Consent Decree, was wholly rejected by the Court.  Instead, the Court viewed the defendant’s optimistic focus on the zero valent iron technology, to the virtual exclusion of other technologies specifically recommended by its own consultants, as a cause of the non-compliance.  The Court concluded that the defendant had not met the heavy burden of demonstrating the grounds for modifying a Consent Decree under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992) (modification may be appropriate when there is a significant change in either factual circumstances or in the law, and when modification would not be detrimental to the public interest). 

In the end, the Court was agreeable to extending compliance deadlines, but required a $45 million letter of credit.  In an unexpected move, the Court unilaterally resolved the technology dilemma by ordering the installation of a fluidized bed reactor system, as recommended by defendant’s consultant.  This technology has never been used in commercial applications for the removal of selenium in coal mining applications, according to the defendant, who estimated the technology would cost $50 million to install.  The defendant has appealed the ruling to the Fourth Circuit Federal Court of Appeals.

Entering a Consent Decree subjects a company to the broad powers and continuing jurisdiction of a federal District Judge.  In this case, the alleged failure to comply with the terms of a unique Consent Decree placed the defendant in civil contempt of Court and, in addition to a Court-selected treatment system; it was obligated to pay several hundreds of thousands of dollars for the mandated letter of credit.  A special master, appointed by the Court, will continue to oversee the installation of a hopefully successful selenium wastewater treatment system.

For more information on Consent Decrees or environmental management strategies, contact Laura Ringenbach or any member of Taft’s Environmental Practice Group.

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