Mine Co., DEP: Board Overstepped Bounds
Court briefs filed saying EQB ignored Kanawha circuit court
Morgantown Dominion Post
16 January 2013
By David Beard
Patriot Mining Co. and the state Department of Environmental
Protection contend that the Environmental Quality Board (EQB) has
ignored circuit court direction and overreached its authority by
blocking the New Hill West mine discharge permit — and should be
reined in by the court.
Patriot Mining, a subsidiary of Arch Coal, and the Department of
Environmental Protection (DEP) filed separate briefs in the case
in Kanawha County Circuit Court.
Patriot observes in its 11-page brief that “the Sierra Club, as
part of its ‘Beyond Coal Campaign,’” wants the DEP to limit
conductivity, total dissolved solids and sulfate levels in New
Hill Mine runoff. The board’s order goes farther, calling for
precise numeric standards.
The DEP uses “narrative standards” for those parameters. Narrative
standards state restrictions in broad terms. The 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.
One measure the DEP uses is the West Virginia Stream Condition
Index, which measures the types, proportions and numbers of
aquatic insects in a stream. A low index score should correlate to
higher conductivity, reflecting higher pollution levels. But
Patriot points out that isn’t the case. The data is, in fact, all
over the place.
“As a result,” Patriot says, “WVDEP determined that conductivity
could not be used to reliably predict stream impairment. ... Under
the Sierra Club’s theory, hundreds of mining operations ... would
be outlawed without any evidence of stream impairment whatsoever.”
Patriot references WVU professor Paul Ziemkiewicz, director of the
Water Research Institute, who said, “conductivity is a ‘sloppy
parameter ’ that is rarely used by scientists and ... ‘you can
really be off if you assume that your conductivity is telling you
very much about the conductivity of the water.”
The court previously ruled that DEP’s narrative standard is
inherently ambiguous but deserves deference by the EQB. But,
Patriot says, the EQB “did not even acknowledge that it had any
obligation to defer to WVDEP. Instead, the EQB was entirely
dismissive of the concept. ... Given that the EQB has now failed
twice to exercise the proper level of deference,” the court should
vacate the EQBs orders and return the case to the DEP.
Instead of relying on unreliable standards and U.S. Environmental
Protection Agency guidance that has been set aside in federal
court, Patriot says, DEP should be allowed to use its own
“Permitting Guidance” documents developed after if first issued
the Patriot permit. Patriot has asked to revise its permit request
to conform to that new guidance, but EQB nixed that and blocked
The DEP’s arguments
DEP points out three flaws in EQB’s actions in a eight-page
One, the DEP, not the EQB, has the sole legislative authority to
develop and implement water quality standards. Two, the EQB
exceeded its authority by imposing standards through its order to
the DEP, and by giving the order to the DEP. Three, by directing
the DEP to use EPA standards set aside by federal court.
While Sierra Club employed a host of scientific evidence in its
case, DEP said, “that approach ... puts the cart before the horse.
The proper role for science in the development of law or policy is
to inform the policy makers. ... In our system of government, the
responsibility for making policy judgments is assigned to the
Legislature, as the elected delegates of the people, and not to
boards of scientists. ... The EQB simply lacks the authority to do
what it attempted to do in its rulings.”
The DEP points out that in 2005, the Legislature, “acting out of
apparent dissatisfaction with how the EQB had exercised its
rulemaking authority,” stripped the EQB of power to establish
water quality standards and specified that power belongs to DEP.
In 2010 and 2012, the DEP said, the Legislature addressed
narrative standards, and the DEP’s new “Permitting Guidance”
reflects the Legislature’s intent. The Sierra Club tries to defend
EQB’s “unlawful action” by attacking the merits of the DEP
guidance, sidestepping the issue of the DEP’s authority.
When DEP challenged the EPA’s overreach as an infringement on its
rights, the DEP said, the federal court agreed.
“The EQB’s standalone direction to ‘use’ the guidance without
offering any discussion of how or why ... only serves to
underscore EQB’s unlawful directive.”
In conclusion, the DEP said, “The court should rein in the EQB’s
unlawful action” by reversing the Supplemental Final Order and
allowing DEP to reinstate the permit, or by directing EQB to defer
to the DEP’s “Permitting Guidance” and allowing the DEP to enforce
water quality standards in its own way.