Briefs Filed in New Hill Mine Expansion Case

Sierra Club: Permit challenge won’t affect other state operations

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 West Permit.”

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 authority.”

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.