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 permit.

The DEP’s arguments

DEP points out three flaws in EQB’s actions in a eight-page brief.

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.