Briefs Filed in New Hill Mine Expansion Case
Sierra Club: Permit challenge won’t affect other state
Morgantown Dominion Post
16 January 2013
By David Beard
The Sierra Club says a challenge to a Cassville surface mine
permit is just that and nothing more — not a threat to coal
statewide as Patriot Mining Co. contends.
The Sierra Club West Virginia Chapter, Patriot Mining and the
state Department of Environmental Protection (DEP) have filed
final briefs in the case and are awaiting a court date, which
hasn’t been set, according to the DEP.
Sierra said science supports blocking the permit.
Patriot Mining — a subsidiary of Arch Coal — wants to expand the
New Hill Mine near Cassville by 225 acres. It is seeking a
modification to its existing National Pollutant Discharge
Elimination System (NPDES) permit to include the expansion, dubbed
New Hill West.
The Sierra Club challenged this in 2010, contending that coal ash
runoff — coal ash is used to mitigate acid drainage — will deposit
various toxins into Scotts Run. The club won a stay on the permit
in November 2010.
The Environmental Quality Board (EQB) issued an order in March
2011 blocking the expansion, and after an appeal by Patriot and
the DEP that returned the case to the EQB for review and
clarification, issued a Supplemental Final Order (SFO) in July
2012 again declaring the NPDES permit illegal.
The EQB ordered the DEP to modify the permit to set numeric
standards for total dissolved solids (TDS), sulfates and
conductivity based on federal Environmental Protection Agency
(EPA) guidance and research and testimony by WVU professor Paul
Ziemkiewicz, director of the Water Research Institute.
The DEP uses “narrative standards” for those parameters. Narrative
standards state restrictions in broad terms. One brief cites a DEP
standard as an example: “Materials in concentrations which are
harmful, hazardous or toxic to man, animal or aquatic life.”
Numeric standards are precise limits on specific substances.
The case is before Kanawha Circuit Judge James Stucky.
Sierra’s 53-page brief delves into water quality science
summarized this way: “Discharges from the New Hill West surface
mine have the reasonable potential to violate water quality
standards by causing or contributing to elevated levels of
conductivity, TDS and sulfate in the receiving stream.” NPDES
permits must contain sufficient protective limits — not just for
pollutants that will definitely violate standards, but for those
with a reasonable potential to cause or contribute to violations.
Sierra argues that the DEP has not set specific numeric standards
for conductivity, TDS and sulfate, and must do so.
While Patriot contended the EQB order can affect surface mines
statewide, Sierra responded, “The SFO states, in multiple
locations, that the board’s decision is specific to the New Hill
The EQB’s July order calls for the DEP to use guidance issued by
the U.S. Environmental Protection Agency — guidance set aside by a
federal district court just days after the order. Sierra contends
that the guidance is just a roadmap. It didn’t order the DEP to
treat the guidance as a standard or imply that the guidance is
binding. The court’s order doesn’t say “state regulators or state
boards should not or may not follow the recommendations outlined
in that guidance.”
Sierra argued conductivity, TDS and sulfate are valid “indicator
parameters” of sulfate, calcium magnesium and bicarbonate ions
that pollute water and affect aquatic life, “and a limit on each
parameter is necessary to ensure that discharges are not causing
violations of water quality standards.”
Sierra defended EQB’s order to use Ziemkiewicz’s research as the
ceiling level for “ionic loading” of Scotts Run, and then to
determine if even lower limits may be needed. EQB did not
overreach its authority. “The board provided adequate guidance to
WVDEP while also recognizing WVDEP’s role as the issuing
Because Scotts Run is already impaired, Sierra said, “it is not an
unusual or burdensome task for WVDEP to determine levels of
conductivity, TDS and sulfate in Scotts Run.”
Sierra concluded by asking the court to affirm EQB’s “reasonable
and fully justified” orders.