Permit Hearing Puts Focus on EPA Mining Crackdown
Charleston Gazette
15 December 2010
By Ken Ward Jr.
CHARLESTON, W.Va. -- Environmentalists and state regulators faced off
Tuesday in the start of a major permit appeal hearing that puts the
spotlight squarely on West Virginia's opposition to a federal crackdown
aimed at reducing strip-mine pollution across the Appalachian
coalfields.
Department of Environmental Protection officials sought an 11th-hour
ruling Monday night to block any mention in the hearing of tougher new
water quality guidelines issued by the U.S. Environmental Protection
Agency earlier this year.
State Environmental Quality Board members turned down that request, and
citizen group lawyers told the board the case is all about DEP's
rejection of the EPA guidelines and a growing body of science they are
based upon.
"DEP refuses to follow the law and the science when it issues permits
for surface coal mines," said Joe Lovett, director of the Appalachian
Center for the Economy and the Environment. "The permit at issue here
is a prime example of DEP's recalcitrance."
Lovett's organization is working with the Sierra Club to appeal a
DEP-issued permit for Scott Depot-based International Coal Group to
expand a mining operation along Scotts Run near Cassville in Monongalia
County.
ICG subsidiary Patriot Mining's New Hill West Mine would cover about
225 acres, and discharge pollution under a modification to an existing
Clean Water Act permit that covers five other adjacent mine sites. In
its appeal, the Sierra Club argued that DEP wrongly did not perform
detailed studies of the mine's potential water quality impacts, and
ignored the need for specific water discharge limits for electrical
conductivity, total dissolved solids and sulfates.
Bob McLusky, a Jackson Kelley lawyer representing the company, argued
that Patriot Mining's permit -- currently suspended by the board
pending the appeal -- is "small potatoes" and not the Sierra Club's
real target.
"They're not in this because of 225 acres," McLusky said. "They see
this as a referendum on mining. Patriot sees itself caught up in a much
larger issue."
Board members set aside four full days this week for the hearing.
Expert witnesses for the Sierra Club will include biologists Margaret
Palmer of the University of Maryland and Emily Bernhardt of Duke
University, two of the authors of a study earlier this year in the
prestigious journal Science, which concluded mountaintop
removal's damaging impacts are "pervasive and irreversible."
Palmer testified Tuesday afternoon that peer-reviewed scientific
literature clearly shows adverse water quality impacts downstream from
coal-mining operations.
"There have been a lot of studies that have shown a pretty clear
relationship between mining and stream impairment," Palmer told board
members. "There are a lot of papers."
Since soon after taking office, the Obama administration has been
citing that scientific consensus in putting strip-mining permits under
much greater scrutiny. EPA has issued new guidance and a landmark
science paper detailing how increased conductivity from mining
pollution is harming aquatic life.
Environmental scientist Evan Hansen of the Morgantown firm Downstream
Strategies, another expert for the Sierra Club, testified Tuesday
morning that Scotts Run already shows signs of aquatic life impairment
from sulfates and increased conductivity.
The situation could be made even worse, Hansen said, by Patriot
Mining's plan to dispose of coal ash from the Morgantown Energy
Associates power plant as part of the site's reclamation plan. Hansen
conceded that coal ash's alkalinity can be of some help in reducing
acid mine drainage from past and current mining in the area, but
testified that DEP has not considered the potential long-term
implications, such as more concentrated selenium runoff from the mine.
In part, the permit appeal focuses attention on a legal dispute over
West Virginia's "narrative" water quality standard.
Unlike "numeric" water quality rules, the narrative standard itself
does not specifically include numeric limits on allowable pollution.
Instead, the narrative standard simply outlaws any condition that
"adversely alters the integrity" of state waters or causes a
"significant adverse impact to the chemical, physical, hydrologic, or
biological components of aquatic ecosystems."
As part of its mountaintop removal crackdown, EPA issued guidance
intended to better define the narrative standard by putting numbers on
what constitutes significant adverse impacts on DEP lawyer Jennifer
Hughes argued that her agency has issued its own guidance for the
state's narrative standard and that therefore the EPA's guidelines are
not legally relevant here. Hughes repeatedly objected to questions and
testimony about the EPA guidelines.
"Science informs policy decisions, it doesn't dictate them," Hughes
said. "It is the DEP's responsibility to make those policy decisions."
Hughes said that the EPA is seeking to force "unobtainable limits" on
West Virginia's mining industry, and McLusky repeated the coal lobby's
belief that EPA is putting the health of aquatic insects over the
economy of the region.
But Palmer testified that DEP's own water quality guidance does not
properly take into account the important functions of aquatic insects
that provide food and energy that is vital to the overall health of
streams, fish and birds.
Changing the number and type of insects can have broader impacts, she
said.
"When you shift the makeup of a community, that can cause many changes
in ecological processes," Palmer told the board.