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Judge overturns board's mining pollution ruling

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CHARLESTON, W.Va. -- A West Virginia judge has overturned a state board ruling that promised to force the state Department of Environmental Protection to conduct tougher permit reviews and enforce tighter water pollution standards for mountaintop removal coal mining.

Kanawha Circuit Judge James Stucky concluded that the state Environmental Quality Board was wrong to mandate that new mining permits include reviews of toxic pollution potential and new discharge limits for sulfates, total dissolved solids, and electrical conductivity.

The nine-page ruling, issued last week, specifically addresses a permit for an Arch Coal mountaintop removal mine in Monongalia County, but could set a precedent for DEP reviews of mining proposals across the state.

DEP spokeswoman Kathy Cosco said the ruling speaks for itself, and Arch Coal did not respond to a request for comment. But the Sierra Club, which challenged the DEP permit decision at issue, said that Stucky's ruling allows Gov. Earl Ray Tomblin's administration "to keep its head in the sand and continue to allow mining that endangers the state's water quality.

"Science has clearly demonstrated that pollution below mountaintop mines has virtually eliminated aquatic life from streams," said Ed Hopkins, a Sierra Club spokesman.

At issue in the case was 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.

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.

In its July 2012 decision, the board found 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 science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams," the board said.

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.

But in his decision, Stucky ruled that the board was wrong not to defer to DEP's conclusions about the science, the mine's potential impacts, and whether the permit should be issued.

"After a thorough review of the record, it is evident that the EQB accorded no deference to WVDEP's interpretation of water-quality standards," the judge wrote in his Feb. 13 decision.

In legal briefs in the case, Sierra Club lawyers had argued that West Virginia law does not require the board to defer to DEP on such matters. In a 1997 decision, the state Supreme Court ruled that the EQB "is not required to afford any deference to the DEP decision, but shall act independently on the evidence before it.

Stucky also said that the EQB was wrong to instruct DEP to model its future permitting decisions on U.S. Environmental Protection Agency water quality guidance that was declared invalid by a federal judge. Stucky said the EQB's instructions in that regard "would infringe upon the authority afforded to WVDEP."

In its decision, the board had ruled against DEP even after Tomblin in November 2011 removed two EQB members -- Charleston businessman Ted Armbrecht and retired biologist James Van Gundy -- who were considered friendly to citizens and environmental groups. Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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