Coal producer Argus Energy settles selenium lawsuit

Due to an unspecified settlement of an environmental group lawsuit against coal producer Argus Energy LLC over mine site selenium emissions, a federal judge on April 4 pushed back the case schedule.

The lawsuit, one of a number like it filed in recent years by environmental groups against coal companies, accuses Argus Energy of violating water standards by letting selenium mixed with water get into area streams. Selenium is beneficial at low levels and toxic at high concentrations. The lawsuit was filed in October 2011 at the U.S. District Court for the Southern District of West Virginia by the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and the Sierra Club.

Both sides told Judge Robert Chambers on April 2 that they had reached a settlement. On April 4, the judge suspended scheduling in the case and cancelled an upcoming April 16 hearing. He directed the parties to file an agreed order of dismissal within thirty days of approval of the proposed settlement by the U.S. government.

The April 2 motion said that since conclusion of the briefing on Argus’s pending motion to dismiss plaintiffs’ first amended complaint, the parties have engaged in successful settlement negotiations. The parties’ draft settlement agreement has been sent for review by the U.S Department of Justice and the U.S. Environmental Protection Agency. The review process by those agencies can take up to 45 days to complete. No details of what is in that agreement are in the April 2 court filing.

Argus Energy is controlled by Jim Booth, one of the bigger independent coal producers in Central Appalachia. It operates in West Virginia under the name Argus Energy WV LLC.

The motion to dismiss the first amended complaint, filed by Argus on Feb. 15, said that the Argus motion to dismiss the prior version of the complaint was “ripe” and ready for a decision by Chambers. Argus has argued that this civil action should be dismissed because:

  • plaintiffs’ claims have been mooted by a consent decree entered in the parallel enforcement action brought by the West Virginia Department of Environmental Protection against Argus in the Circuit Court of Mingo County;
  • WVDEP’s diligent prosecution of the Mingo County action precludes plaintiffs’ claims;
  • plaintiffs’ second claim for relief is barred because it relates to wholly past violations;
  • and the status of the Mingo County action merits this court’s abstention.

Argus said in the Feb. 15 filing that it remains on schedule on the deadlines in the consent decree. That decree sets final discharge limitations for selenium at Outlets 006 and 009 at an Argus mine site no later than Nov. 15. Consistent with the timeline set forth in the decree, Argus has submitted an application to modify WV/NPDES Permit No. WV1020013 to authorize the installation and operation of a biological reactor treatment system at both Outlet 006 and Outlet 009.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.