DEP to Appeal EQB Mine Order
Patriot Mining still blocked from expanding
Morgantown Dominion Post
9 August 2012
By Davis Beard
The state Department of Environmental Protection (DEP) will appeal
a recent supplemental order by the Environmental Quality Board
(EQB) that continues to block expansion of Patriot Mining’s New
Hill surface mine near Cassville.
DEP spokesman Tom Aluise said DEP has until Aug. 30 to appeal to
Kanawha County Circuit Court, “so it will be sometime before
In a 3-2 split, the EQB determined July 30 that the National
Pollutant Discharge Elimination System (NPDES) permit that the DEP
issued for the mine expansion is illegal. The DEP must modify the
permit to set standards for total dissolved solids (TDS), sulfates
and conductivity based on federal EPA guidance and research and
testimony by WVU professor Paul Ziemkiewicz, director of the Water
Patriot Coal — a subsidiary of Arch Coal — wants to expand the New
Hill Mine by 225 acres. It is seeking a modification to its
existing NPDES permit to include the expansion, dubbed New Hill
The Sierra Club West Virginia Chapter challenged this in 2010,
contending that coal ash runoff — coal ash is used to mitigate
acid drainage — will deposit various toxins into Scotts Run via a
tributary. The club won a stay on the permit in November 2010.
The EQB issued a final order in March 2011 blocking the expansion,
which Patriot and the DEP appealed to Kanawha Circuit Court. In
September, the judge ordered a stay on certain portions of the EQB
order, but others remained in effect — which essentially
maintained the roadblock. The judge also remanded the case back to
EQB for more information on its findings.
Then in November, the EQB recognized that Patriot was suffering
harm from the stay, losing $250,000 per month, and that while the
Sierra Club has demonstrated that the receiving stream is already
degraded and would likely suffer additional long-term harm, the
harm is not immediate or great, and staying the permit won’t
repair it. The EQB ordered at that time that Patriot and the DEP
must modify the NPDES permit, in consultation with the U.S.
Environmental Protection Agency, if necessary.
Sources at the time said expansion work remained on hold, though,
while the DEP worked out standards for some other pollutants
discussed in the case.
Arch Coal would not comment Wednesday on the case, or say whether
Patriot ever undertook expansion work after the November order.
Patriot President Vaughan Miller and Patriot’s attorneys in the
case did not return calls.
In its July order, the EQB stands by its March 2011 decision. It
agrees with the Sierra Club that the federal Clean Water Act
requires the DEP to include effluent (mine runoff) limits that
comply with applicable water quality standards. It failed to do
this for TDS, sulfates and conductivity — which refers to a
stream’s ability to pass an electrical current; conductivity
changes can reflect the presence of various pollutants.
The EQB said surface mine discharges raise TDS, sulfate and
conductivity levels, and “discharges from the New Hill West
Surface Mine and other similar mines in the Scotts Run watershed
contain levels [of all three] above the limits known to cause harm
to aquatic life and significant adverse impacts to aquatic
The EQB chastised the DEP: “Despite longstanding and abundant
evidence within the DEP’s watershed database for biological damage
[in coalfield streams], the WVDEP has made little attempt either
to determine the cause of such damage or to limit it. ... The
board rejects the WVDEP’s argument that the science of
conductivity measurement is too unsettled.
“The board finds,” it continued, “the permit is unlawful because
it fails to include enforceable effluent limits sufficient to
ensure protection” of the state’s water quality standards. The DEP
must analyze the potential danger levels for pollutants it hasn’t
set standards for — including TDS, sulfates and conductivity — and
then set limits for those with a reasonable potential of danger.
“The majority of the board,” it said, “finds that the mining
operation has the opportunity and potential to improve water
quality.” It must use EPA guidance and Ziemkiewicz’s research “as
a roadmap toward setting effective conductivity limits on the New
Hill West Permit.”
Sierra’s Energy Committee chairman, Jim Kotcon, said Wednesday he
hasn’t read the new order yet. “But the Sierra Club is pleased
that the Environmental Quality Board found that pollution does
exist and that the mining company needs to clean it up and
demonstrate that in their permit.”
The Woods said in an email, “We were very pleased that EQB made
their decision based on the scientific evidence.”