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
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
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.