New Hill Mine Update

High court to hear case on expansion

EQB order in 2011 blocks Patriot growth

Morgantown Dominion Post - 26 April 2013
By David Beard

The lawsuit blocking expansion of a Cassville surface mine has gone to the state Supreme Court.

The Sierra Club appealed the case following a Kanawha County Circuit Court ruling in favor of Patriot Mining and the state Department of Environmental Protection (DEP).

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 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 a circuit court appeal by Patriot and the DEP that returned the case to the EQB for review and clarification, issued a Supplemental Final Order in July 2012 again declaring the NPDES permit illegal.

Patriot and the DEP appealed that order to circuit court. Judge James Stucky ruled in their favor last month.

The EQB ordered the DEP to modify the permit to set numeric standards for total dissolved solids (TDS), sulfates and conductivity based on U.S. 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.

Stuckey agreed to DEP’s and Patriot’s contentions that the EQB:

Gave no deference to DEP’s interpretation of water quality standards.

Exceeded its authority by attempting to impose de facto (not officially established) water quality standards from the EPA instead of using DEP narrative guidance.

Stuckey said the EQB’s order infringed on the DEP’s authority and was therefore arbitrary and capricious.

In its appeal, Sierra contends that Stuckey made three errors:

He failed to recognize that state code gives the EQB authority to act independently and review DEP’s decisions without presuming the DEP is correct.

He ignored 139 findings of fact given in four days of testimony. The EQB didn’t accept EPA guidance as law, but accepted the data and methodology cited by the EPA and independently validated by experts — and directed DEP to use that data and method to calculate standards.

He should have referred the case back to the EQB. Dismissing the case leaves the state of the NPDES permit and certain issues of the final order not addressed in the appeal in question.

The case does not yet appear on a Supreme Court docket (viewable only through May). DEP said Thursday it doesn’t know when the court will review the case, but they expect it to be this year.

Supreme Court spokeswoman Jennifer Bundy said Thursday that the court has issued a scheduling order for filings. After those dates, the court will decide whether to put it on an argument docket.

Motions were due April 11, she said. The brief from Patriot and DEP is due July 29. The reply brief is due Aug. 19.