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Toughen mine permits, W.Va. board recommends

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CHARLESTON, W.Va. -- While a federal court has rejected Obama administration guidance aimed at reducing mountaintop removal pollution, a new state appeals board decision is demanding tougher permit reviews and tightening water quality limits.

The state Environmental Quality Board said mining permits must include reviews of toxic pollution potential and new discharge limits for sulfates, total dissolved solids, and electrical conductivity.

EQB members issued a 26-page ruling that concluded scientific evidence clearly shows mining pollution is damaging water quality downstream from mountaintop removal operations.

In a 26-page decision, the EQB also said the state Department of Environmental Protection's own data backs up such conclusions and faulted DEP for not taking action on its own.

"Despite longstanding and abundant evidence within the WVDEP's watershed database for biological damage ... in streams draining surface mines in West Virginia's coalfields, the WVDEP has made little attempt either to determine the cause of such damage or to limit it," the board ruling said.

The EQB released its ruling late Tuesday morning, just hours before word began to spread of a federal court decision in Washington that threw out U.S. Environmental Protection Agency water quality guidance aimed at reducing mountaintop removal pollution.

EQB members ruled in a case in which the Sierra Club challenged DEP's approval of a water pollution permit for Arch Coal subsidiary Patriot Mining Co.'s New Hill West Mine along Scotts Run near Cassville in Monongalia County.

Sierra Club lawyers argued the DEP wrongly did not perform a "reasonable potential analysis" of the mine's possible sulfate, total dissolved solids, or TDS, and conductivity pollution. They argued that such studies would have forced DEP to include additional water pollution limits in the permit.

Arch Coal officials declined comment on the ruling, but an appeal by DEP or the company seems almost certain.

"An appeal or some way of contesting that seems likely," said Tom Clarke, director of the DEP Division of Mining and Reclamation.

DEP Secretary Randy Huffman said Wednesday that while mining and other industrial activities cause environmental damage, whether that damage is "significant" is a subjective matter that policymakers at DEP should decide.

"I think you have environmental impacts anytime you turn a shovel," Huffman said. "There is environmental degradation that takes place with mining -- significant is a nebulous term that people use based on what they believe. That's a term people use to promote a political agenda."

The EQB, though, said such decisions can and should be made based on the best available science.

"The board finds that a growing body of science has demonstrated that discharges from surface coal mines in Appalachia are strongly correlated with and cause increased levels of conductivity, sulfate, and TDS in water bodies downstream from mines," the board ruling said. "The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams."

In this instance, the board said that DEP "overlooked or discounted information that, had it been considered, would have compelled" the agency to include additional pollution limits to prevent violations of the state's water quality standards.

Board members ruled that evidence of water quality damage from existing mining in the state's coalfields was "un-refuted" by witnesses from DEP or the mining company.

"The EQB's ruling is in alignment with all of the science," said Joe Lovett, an Appalachian Mountain Advocates attorney who represented the Sierra Club in the case. "The science is getting stronger every day saying these mines are degrading our state's waters."

The board ruled against DEP even after Gov. Earl Ray Tomblin last November removed two EQB members -- Charleston businessman Ted Armbrecht and retired biologist James Van Gundy -- who were considered friendly to citizen and environmental groups.

Ruling for the Sierra Club in the 3-2 ruling were board Chairman Ed Snyder, a Shepherd University ecologist, and Marshall University scientists Scott Simonton and Charles Somerville. Ruling for DEP were West Virginia Geological Survey coal program manager Mitch Blake and former state Forestry Director Bill Gillespie.

This week's board ruling on the Arch permit reaffirmed an original decision that was sent back by a circuit judge who ordered the board to spell out its rationale in more detail. Armbrecht and Van Gundy both ruled against DEP in the original decision. Tomblin's new appointees, Somerville and Blake, split on the case.

While board members said the ruling pertains specifically to the New Hill West Mine, they also acknowledged that in other permits "headwater stream communities may require a more strict conductivity standard."

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


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