New Hill Mine - DEP Appeal Cites Legal, Factual Errors

Says EQB findings not fully backed up

Morgantown Dominion Post
5 September 2012
By Alex Lang

The state’s Department of Environmental Protection (DEP) filed an appeal in Kanawha County Circuit Court to fight a decision by the Environmental Quality Board (EQB) that continues to prevent an expansion of Patriot Mining’s New Hill surface mine.

In a 3-2 decision July 30, the board ruled that the National Pollutant Discharge Elimination System permit that the DEP issued for the mine expansion was illegal.

The board stated the DEP must modify the permit to set standards for total dissolved solids (TDS), sulfates and conductivity. The standards were to be based on federal Environmental Protection Agency (EPA) guidelines and research of WVU professor Paul Ziemkiewicz.

Patriot Coal wants to expand the mine’s operation by 225 acres. The expanded mine has been dubbed New Hill West and is near Cassville.

The Sierra Club West Virginia Chapter challenged the ruling in 2010. The club won a stay of the permit in November 2010. In March 2011, the EQB issued a final order stopping the expansion. Patriot Coal and the DEP appealed the decision in circuit court, some of the items of the order were blocked, but part remained that prevented the expansion from moving forward. The case was also remanded back to the EQB.

According to the DEP’s most recent appeal, which was filed Thursday, the DEP states several “specific assignments of factual and legal error.” The appeal was provided to The Dominion Post by the DEP.

One of the DEP’s claims is that the board’s “de facto implementation of numeric water quality standards ... was in excess of its statutory authority and jurisdiction.” It also argues that the board’s reliance on the EPA Guidance, which the DEP sought to exclude, was arbitrary and in violation of applicable law.

The DEP also states the board’s findings on several issues have no supporting evidence.

One area the DEP cites is that discharges from surface coal mines “with increased levels of mixed ionic salts, mixed ionic stressors, conductivity, sulfate and total dissolved solids cause harm to aquatic life and significant adverse impacts to aquatic ecosystems has no evidentiary basis was clearly wrong in view of the reliable, probative and substantial evidence in the record.”

In its conclusion, the DEP states it “prays” that the court reverses the board’s decision.