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Published: Sunday, April 27, 2008
Page: 3B
Byline: KEN WARD JR.

Selenium pollution from one of West Virginia's largest mountaintop removal mines is dangerously poisoning Mud River fish, leaving some with serious deformities, according to one of the nation's leading experts on the issue.

Fish samples showed some specimens with two eyes on one side of the head, and others with curved spines, according to a report filed in federal court by fisheries biologist A. Dennis Lemly.

Lemly blamed high concentrations of selenium in discharges from the Hobet 21 mountaintop removal complex upstream from the Mud and from the Mud River Reservoir.

"The Mud River ecosystem is on the brink of a major toxic event," Lemly said in a report, filed April 18 in U.S. District Court in Huntington.

"If waterborne selenium concentrations are not reduced, reproductive toxicity will spiral out of control and fish populations will collapse," Lemly wrote in his 29-page report.

Lemly prepared his report for environmental group lawyers who filed a federal court case to try to force Hobet 21 operator Hobet Mining Inc. to stop violations of its selenium discharge limits.

The court action is the latest effort by the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy to try to crack down on coal industry selenium pollution.

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 aquatic life, very small amounts of selenium have been found to cause reproductive problems.

In 2003, a broad federal government study of mountaintop removal coal mining found repeated violations of water quality limits for selenium in water downstream from mining operations. The following year, a report from the U.S. Fish and Wildlife Service found troubling levels of selenium in fish downstream from large surface mines.

Coal industry lobbyists tried - so far unsuccessfully - to persuade lawmakers and the Department of Environmental Protection to relax West Virginia's water quality rules for selenium.

The Manchin administration moved instead to give nearly 100 coal operations three more years to fix violations of their selenium permit limits. Environmental groups are challenging about two dozen of those DEP compliance orders before the state Environmental Quality Board.

Since the federal report in 2003, environmentalists have discovered that the DEP has not taken enforcement action against mine operators with selenium violations. Citizen groups sought to file their own lawsuits in federal court. DEP lawyers responded by filing agency lawsuits, which would block the citizen court actions. However, since filing its cases, the DEP has not sought court orders to force compliance.

"Plaintiffs have not located a case where a state has so brazenly attempted to exploit the preclusion provisions by simply commencing an action to preclude a citizen suit and then doing nothing," wrote citizen group lawyers Joe Lovett and Derek Teaney. "DEP's Boone County action is part of its larger effort to immunize the coal industry from compliance with the selenium water quality standard."

In their latest case, Lovett and Teaney targeted Hobet 21. The huge mountaintop removal complex, located along the Boone-Lincoln county line, is among the five largest surface coal mines in the state. The unionized mine produced more than 3.7 million tons of coal with 350 workers in 2006, according to U.S. Department of Energy data.

Under state Clean Water Act permits, Hobet 21 discharges its water pollution into tributaries of the Mud River, some of which feed into the Upper Mud Reservoir, which is part of a state wildlife management area.

In their February lawsuit, Lovett and Teaney cited more than 3,000 selenium water discharge violations from four Hobet 21 permits between February 2006 and December 2007.

Earlier this month, Lovett and Teaney asked U.S. District Judge Robert C. Chambers to schedule a hearing on their request for a preliminary injunction.

They want the judge to force Hobet Mining to explain what technology the company will use to eliminate its violations. They also want Chambers to require reports from the company explaining what steps, including contracting with suppliers, have been taken to bring the discharges into compliance.

Kenny Daniel, Hobet's manager of engineering, has testified that his company is not treating its selenium discharges because it did not know what sort of treatment system to use, court records show.

Daniels described several selenium treatment "pilot projects," but said those projects either had no effect or had not been in place long enough to show results.

In court papers, Lovett and Teaney argue that Lemly's report shows that Hobet's selenium discharges are "causing irreparable harm to aquatic life in the Mud River Watershed, and could lead to a catastrophic collapse of fish populations in the Mud River Reservoir."

Lemly is a Ph.D. biologist on the staff of Wake Forest, Virginia Tech and Duke universities. He has spent 25 years studying selenium pollution and its effects on aquatic life, publishing extensively in peer-reviewed journals on the subject.

According to this report, Lemly examined water quality data, fish sampling reports and fish larva photographs taken by the DEP in June 2007 as part of a state agency study of selenium pollution.

Lemly explained that selenium can be directly toxic to adult fish, damaging gills and internal organs, eventually killing the fish. Selenium also can cause reproductive impacts that are passed from parents to offspring in eggs. These effects can result in deformities of the spine, head and fins. Many of these effects are lethal, because they either kill young fish just after hatching or later prevent them from feeding normally or escaping from predators.

Some studies show that enough selenium in water can cause "complete reproductive failure" in lakes and reduce reproduction in streams by 40 percent, Lemly said.

Lemly said DEP data from the Mud show concentrations that can cause either of these types of toxic effects in fish.

When Lemly examined fish samples taken by the DEP, he found deformity in more than one-third of the samples, according to his report.

"The warning signs are evident," Lemly wrote. "If a catastrophic event is to be avoided, now is the time to take action."

Hobet Mining's lawyers have not yet responded to Lemly's report in court, and the DEP is not a party to the federal court action.

Last week, Randy Huffman, director of the DEP's Division of Mining and Reclamation, said he has seen some of the fish- sample photos and agrees something is wrong with the fish.

"Is something going on? Obviously, there's something wrong with those fish," Huffman said. "But to make the jump that it's selenium, we're not ready to say that.

"We are in the process of making that kind of determination on our own," said Huffman, who takes over Thursday as DEP secretary for Gov. Joe Manchin. "In fact, our study is not done. We're still collecting data."

Huffman said Lemly's warning that the Mud River "is on the brink of a major toxic event" is "a pretty extreme thing to say at this point." Huffman wondered if Lemly could predict exactly when this event might occur.

"I can predict that the world is going to end, but I don't know when," Huffman said. "We will come to some conclusions. I haven't read what [Lemly] has done, and our people have not reviewed it in any detail."

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702.

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