DEP Ordered to Add Discharge Limits for Conductivity
Charleston Gazette
10 March 2011
By Ken Ward Jr., Staff writer
CHARLESTON, W.Va. -- West Virginia regulators were ordered Thursday to
add new limits to a strip-mining permit, forcing them for the first
time to regulate conductivity pollution scientists say is causing
widespread water quality damage downstream from coal-mining operations.
The state Environmental Quality Board sided with the Sierra Club, which
sought the new permit conditions in its appeal of an International Coal
Group operation authorized by the Department of Environmental
Protection.
Board members unanimously sent the permit back to DEP, with
instructions that the agency determine appropriate discharge limits for
conductivity, sulfates and total dissolved solids and write those
limits into the company's water pollution permit.
"The EQB made a tough decision today," said Joe Lovett, one of the
Sierra Club's lawyers in the case. "But it was really carried toward
that decision by the law and the science. The consensus is clear that
the conductivity associated with large-scale surface mines is damaging
to water quality."
The case specifically dealt with DEP's approval of a permit for ICG
subsidiary Patriot Mining to add a new, 225-acre surface mine called
New Hill West to an operation along Scotts Run near Cassville in
Monongalia County.
But the appeal focused more attention on the U.S. Environmental
Protection Agency's crackdown on mountaintop removal and the growing
body of science EPA cites showing water quality problems downstream
from large mining operations.
Board members rejected repeated efforts by lawyers for DEP Secretary
Randy Huffman to prohibit any discussion during the appeal of new EPA
water quality guidance for mining permits and prohibit Sierra Club
lawyers from citing certain EPA scientific reports as evidence in the
case.
Scientists used electrical conductivity as a key indicator of stream
health and the presence of other important pollutants such as
chlorides, sulfides and dissolved solids. Recent research has found
increased conductivity downstream from mining operations in Appalachia,
and scientists have linked impaired aquatic life to those increased
conductivity levels.
Last month, the board held four days of hearings on the appeal, during
which they heard detailed testimony from several of the top scientists
publishing peer-reviewed studies about mining's growing water-quality
impacts. Lawyers made final legal arguments Thursday morning and the
board then announced its decision.
Board members agreed that the scientific evidence indicates a "strong
correlation" between increased conductivity and damage to aquatic life.
They did not, as the Sierra Club asked, set a specific discharge limit
that DEP must use when it revises the ICG permit. The board gave DEP 45
days to study the issue and add appropriate discharge limits to the
permit.
During Thursday's arguments, ICG lawyer Bob McLusky told board members
the permit proposal would have minimal impact on conductivity levels
downstream, and that the Sierra Club was wrongly using a relatively
small permit in North-Central West Virginia as the basis for a broader
attack on mountaintop removal.
McLusky and DEP lawyer Jennifer Hughes also argued that the Sierra Club
was trying to convince the board to write a new state numeric water
quality standard for conductivity, something that only the DEP has
authority to do.
Lovett responded that he simply wanted the board to require DEP to
enforce the state's narrative water quality standard -- which prohibits
discharges that would cause significant adverse impacts -- by adding
discharge limits to the ICG mine's permit.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.