Is Selenium The Coal Industry’s Kryptonite? Citizen Groups Obtain Summary Judgment Based On Water Quality Criteria Exceedances

Earlier this week, the Ohio Valley Environmental Coalition and other NGOs obtained summary judgment that Alex Energy had violated both its NPDES permit and its Surface Mining Permits due to exceedances of the West Virginia water quality standard for selenium. The permit did not contain effluent limitations for selenium. Nonetheless, the state NPDES permits incorporate by reference regulations stating that:

discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by [West Virginia Code of State Rules § 47-2].

Similarly, the West Virginia surface mine permitting program, which issues permits in West Virginia under the Surface Mining Control and Reclamation Act, requires permit holders to comply with performance standards which require that: