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 then.”

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 Research Institute.

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 West.

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 ecosystems.”

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.”