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DEP ordered to add discharge limits for conductivity

CHARLESTON, W.Va. -- West Virginia regulators were ordered Thursday to add new limits to a strip-mining permit, forcing them for the first time to regulate conductivity pollution scientists say is causing widespread water quality damage downstream from coal-mining operations.

The state Environmental Quality Board sided with the Sierra Club, which sought the new permit conditions in its appeal of an International Coal Group operation authorized by the Department of Environmental Protection.

Board members unanimously sent the permit back to DEP, with instructions that the agency determine appropriate discharge limits for conductivity, sulfates and total dissolved solids and write those limits into the company's water pollution permit.

"The EQB made a tough decision today," said Joe Lovett, one of the Sierra Club's lawyers in the case. "But it was really carried toward that decision by the law and the science. The consensus is clear that the conductivity associated with large-scale surface mines is damaging to water quality."

The case specifically dealt with DEP's approval of a permit for ICG subsidiary Patriot Mining to add a new, 225-acre surface mine called New Hill West to an operation along Scotts Run near Cassville in Monongalia County.

But the appeal focused more attention on the U.S. Environmental Protection Agency's crackdown on mountaintop removal and the growing body of science EPA cites showing water quality problems downstream from large mining operations.

Board members rejected repeated efforts by lawyers for DEP Secretary Randy Huffman to prohibit any discussion during the appeal of new EPA water quality guidance for mining permits and prohibit Sierra Club lawyers from citing certain EPA scientific reports as evidence in the case.

Scientists used electrical conductivity as a key indicator of stream health and the presence of other important pollutants such as chlorides, sulfides and dissolved solids. Recent research has found increased conductivity downstream from mining operations in Appalachia, and scientists have linked impaired aquatic life to those increased conductivity levels.

Last month, the board held four days of hearings on the appeal, during which they heard detailed testimony from several of the top scientists publishing peer-reviewed studies about mining's growing water-quality impacts. Lawyers made final legal arguments Thursday morning and the board then announced its decision.

Board members agreed that the scientific evidence indicates a "strong correlation" between increased conductivity and damage to aquatic life. They did not, as the Sierra Club asked, set a specific discharge limit that DEP must use when it revises the ICG permit. The board gave DEP 45 days to study the issue and add appropriate discharge limits to the permit.

During Thursday's arguments, ICG lawyer Bob McLusky told board members the permit proposal would have minimal impact on conductivity levels downstream, and that the Sierra Club was wrongly using a relatively small permit in North-Central West Virginia as the basis for a broader attack on mountaintop removal.

McLusky and DEP lawyer Jennifer Hughes also argued that the Sierra Club was trying to convince the board to write a new state numeric water quality standard for conductivity, something that only the DEP has authority to do.

Lovett responded that he simply wanted the board to require DEP to enforce the state's narrative water quality standard -- which prohibits discharges that would cause significant adverse impacts -- by adding discharge limits to the ICG mine's permit.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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