"This is a state-of-the-art permit," Reese testified, according to a hearing transcript. "Mingo Logan was, as we called it, the poster child. And we went through the mill with them, and we made them do things that we never made any other company in the state of West Virginia do." During the hearing in federal court in Huntington, Walt Morris, lawyer for the citizens groups, complimented DEP for these efforts.
"I applaud and I think OVEC applauds the modeling exercise, because it led to a number of very good changes as they were described to us in the way that the mining project is going to be constructed as it goes forward," Morris said.
The battle of the hydrology experts But a hydrology expert hired by the citizen group said there was one major flaw in DEP's work: The agency did not require the right kind of stream flow data.
DEP officials used monthly stream flow data collected over the course of six consecutive months. They also had some monthly data for other months in other years.
Robert K. Simons, a hydraulic engineer working for OVEC, testified that the data DEP used wasn't sufficient.
"Island Creek [is] fairly small, and the response to flooding is fairly rapid," Simons testified.
"And in my opinion, to understand the hydraulic processes, one would need to collect data on a fairly frequent basis," he said. "Something on the order of hourly might be required for some period of time to see how an event or how the watershed would respond to a particular storm event, for example." Simons testified that a full year's worth of daily or hourly flow monitoring would be required to really know how streams respond to rainfall during different seasons.
"Anything less than a year, you would have the possibility of missing a key season to understand both the high flow end of the spectrum as well as the low flow," Simons said.
"A storm may only last a few hours, and the watershed response may only last a few hours. And if you collect like one sample during that time, you don't really know where you are in the hydrologic time frame." Simons said that equipment to collect such data would cost about $2,000.
Under cross-examination by Morris, DEP's Reese insisted that a full year's worth of daily sampling wasn't needed to evaluate the Mingo Logan permit.
"I would have to defer to my opinion that six months of data represents seasonal variation," Reese said. "That information included in [the permit] is within a six-month period. Therefore, it is representative of a seasonal variation. That is my opinion." But Tom Galya, a DEP hydrologist who did not formally review the Mingo Logan permit for the agency, testified that Reese was wrong.
"As a scientist, the more data the better," Galya testified. "And for the consultant or company ... I find sometimes it's very difficult for me to understand how they could capture an idea about the hydrology just from a limited amount of data, which might be six months.
"If I had my druthers, I would welcome the 12 months." Bailey, the DEP lawyer, repeatedly objected to Galya being allowed to answer Morris' questions in court.
"I mean, you drag public officials in here, and we can bring however many employees from the [DEP] we want to get their opinions if the Court thinks that's fair game," Bailey said. "The question here is violation of nondiscretionary duties. These questions are about discretion. I'm sure two years [of data] would be better, and three years and four." In a March 8 opinion, Judge Chambers declined to block the Mingo Logan permit. The judge refused to require DEP to collect more stream flow data.
"In short, Plaintiffs argue that the Defendant has too little data from baseline samples to predict flow during wet periods or rainfall events," Chambers wrote in a 14-page decision.
"To some extent, the evidence on this point typifies a battle of experts, each expressing with varying degrees of specificity and assurance what standard should be followed," the judge wrote.
"While more data is preferable, the Court again declines to impose Plaintiffs' recommendations as a standard inherent to Defendant's duty to require and consider baseline data.
"The regulations require water quality and quantity descriptions which include 'information' on seasonal flow rates and seasonal variations," Chambers wrote. "This Court previously recognized Defendant's discretion to decide what amount and source of baseline data is sufficient." In an earlier ruling in the CHIA case, Chambers said that the citizens "may exaggerate the real duty" of DEP to require baseline data.
"The regulations provide Defendant with discretion in determining the amount and source of baseline data information," the judge wrote in a June 15, 2000, ruling.
In his March ruling, Chambers noted that the Island Creek residents "have a strong emotional basis for some of their concerns." The judge also suggested that, in many cases, DEP should consider collecting more baseline data.
"Defendant could without much cost or delay easily remedy some of [the permit deficiencies] argued by Plaintiffs," Chambers wrote.
"Defendant's vulnerability to a legal challenge to the baseline data in this case would be minimized by sampling more representative of West Virginia's wet and dry periods in a typical year."