Center files motion to intervene in Arch Coal case

Environmental groups want to stop an ineffective consent decree….

On April 14, the Center filed a motion to intervene in a federal case involving persistent violations of the Clean Water Act by Arch Coal and its subsidiaries in Kentucky and West Virginia.

On behalf of the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and the Sierra Club, the Center moved to intervene in a lawsuit brought by the U.S. Environmental Protection Agency and Kentucky and West Virginia?s regulatory agencies.

The Center believes the proposed consent decree to resolve this complaint is inadequate and ineffective, and would interfere in a civil case brought by the Center against Coal-Mac, one of Arch?s subsidiaries.

The consent agreement would allow Coal-Mac to use an experimental passive treatment system to bring its selenium discharges into compliance.

There are several problems with this approach. First, of course, is the fact that this treatment plan is untested. The Clean Water Act requires compliance as soon as possible. The consent agreement gives Coal-Mac until the end of the year to determine whether this pilot program actually works.

That trigger date is another problem. If the experimental system shows early success by the end of the year, the consent agreement does not require Coal-Mac to implement an alternate plan ? even if the system later fails.

That?s a serious issue because the nature of the experimental system ? which involves a biochemical reactor using manure, among other things ? could result in limited effectiveness when temperatures are low or water flows are high. Those conditions are more likely, of course, in the winter and spring months following the trigger date.

Then, of course, there?s the fact that the system could lead to additional pollutants being discharged into the stream, including heavy metals, nitrogen and endocrine disruptors. In other words, potentially solving one pollution problem could lead to more pollution issues.

In addition, the civil fine proposed by the consent decree ? $4 million for more than 14,000 days of violations ? is wholly inadequate. Based on federal regulations, the civil penalty for these violations could potentially top $450 million. In that light, $4 million is less than a slap on the wrist.

In fact, according to expert testimony delivered in the civil action brought by OVEC, Coal-Mac alone saved more than $4.6 million since 2008 by not installing and operating an active selenium treatment system.

Companies should not benefit monetarily from flouting the law.

You can read the motion to intervene?here and the Center’s comment on the consent decree?here.

Check back for updates on this case.

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