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 kward@wvgazette.com or 304-348-1702.
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