Court Lets DEP Use Lower Standard on Pollution Reviews

Charleston Gazette
30 May 2014
By Ken Ward Jr., Staff writer

The state Supreme Court on Friday upheld a decision that allowed the Department of Environmental Protection to avoid tougher permit reviews and tighter water pollution limits for mountaintop removal mining operations.

Justices concluded that Kanawha Circuit Judge James Stucky was right to throw out a previous decision by the state Environmental Quality Board in a case brought by the Sierra Club over an Arch Coal permit for a mountaintop removal operation in Monongalia County.

In an 11-page decision, the justices said they were “not persuaded” that there is “adequate agreement in the scientific community” to trigger the DEP to conduct a more detailed analysis of potential water quality problems involving sulfate, conductivity or total dissolved solid pollution related to the proposed mining. Justices also criticized what they called the “arbitrary nature” of the board’s order, saying board members “offered no discussion” about the relationship between that kind of analysis and potential compliance with the state’s water quality standards.

The court ruled through an unsigned decision that was agreed to by Chief Justice Robin Jean Davis and Justices Menis E. Ketchum and Allen H. Loughry II. Justices Brent Benjamin and Margaret Workman dissented.

At issue in the case was the DEP’s approval of a water pollution permit for Arch Coal subsidiary Patriot Mining Co.’s new Hill West Mine along Scotts Run near Cassville. Sierra Club lawyers argued the DEP wrongly did not perform a “reasonable potential analysis” of the mine’s possible sulfate, total dissolved solids (or TDS), and conductivity pollution. They argued that such studies would have forced the DEP to include additional water pollution limits in the permit.

The environmental board had ruled in 2012 that a growing body of science demonstrated that discharges from surface coal mines in Appalachian are strongly correlated with and cause increased levels of conductivity, sulfate and TDS in water bodies downstream from mines.

“The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams,” the board said.

Board members said that DEP “overlooked or discounted information that, had it been considered, would have compelled” the agency to include additional pollution limits to prevent violations of the state’s water quality standards. Board members ruled that evidence of water quality damage from existing mining in the state’s coalfields was “un-refuted” by witnesses from the DEP or the mining company.

But in his decision last year, Stucky ruled that the board was wrong not to defer to the DEP’s conclusions about the science, the mine’s potential impacts, and whether the permit should be issued. “After a thorough review of the record, it is evident that the EQB accorded no deference to WVDEP’s interpretation of water-quality standards,” the judge wrote.

The Supreme Court steered clear of that issue, saying that justices disagreed that the case “involves a question of deference to the WVDEP’s authority.” The court said there was “no evidence” that at the time the permit was approved the DEP had developed relevant formal policies to which the EQB could have deferred.

“Rather, this issue appears to be a question of whether the EQB had a sufficient basis for remanding the permit to the WVDEP with the requirement that the WVDEP conduct reasonable potential analyses and set effluent limitations for sulfate, conductivity, and TDS to meet state narrative water quality standards,” the court said.

Reach Ken Ward Jr. at or 304-348-1702.

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