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W.Va. pollution board begins rewrite of mine ruling

CHARLESTON, W.Va. -- Members of the state Environmental Quality Board on Friday began the process of rewriting a major decision that for the first time requires limits on conductivity pollution that scientists say is causing widespread water quality damage downstream from coal-mining operations.

Board members are taking another look at the matter after a circuit judge said they did not provide enough detail to explain their earlier decision concerning an Arch Coal Inc. mountaintop removal operation in Monongalia County.

Late last month, Kanawha Circuit Judge James Stucky sent the case back to the board, with instructions that members come up with "written supplemental findings detailing a reasoned and articulate decision."

The case focuses on efforts by environmental groups to force the state Department of Environmental Protection to apply to state permits new U.S. Environmental Protection Agency water quality guidance on conductivity.

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.

Legal wrangling over the water pollution permit for Arch Coal subsidiary Patriot Mining's New Hill West Mine is one of two significant permit challenges that have flowed, at least in part, from the Obama administration's strip-mining crackdown.

In the other case, environmental group lawyers are trying to force the U.S. Army Corps of Engineers to apply EPA's water quality guidance to an Alpha Natural Resources permit in Logan County.

Citizen groups have also used the Alpha case to, for the first time, insert into a permit challenge a series of West Virginia University studies that found high rates of birth defects, cancer and other illnesses among residents living near mountaintop-removal mines.

"Neither this, nor any other mountaintop-removal permit, should be issued," said Janet Keating, executive director of the Ohio Valley Environmental Coalition. "The corps and mining companies cannot ignore this important science at the expense of human lives."

U.S. District Judge Robert C. Chambers has not yet set a hearing on the Alpha permit case.

In the Arch Coal permit matter, board members on Friday asked lawyers for environmental groups, the DEP and the company for input on how the board should respond to Stucky's decision.

Company lawyer Bob McLusky renewed his arguments that the board should not have ruled for environmental groups in the first place, and urged board members to dissolve an earlier order suspending the permit pending the board's initial hearings on the case.

"I don't think the court presumed you were just going to put a few ribbons and bows on this thing and send it back. And if you do, I think it will be overturned," McLusky said.

DEP lawyer Jennifer Hughes said she didn't want to provide input to help the board rewrite a ruling against her agency's permit issuance.

Board Chairman Ed Snyder and agency lawyer Wendy Radcliff said if the DEP didn't want to file a brief explaining hot it felt the board should proceed, that was fine with them.

"We have no problem moving forward," Snyder told Hughes. "We just wanted to give you some input."

Radcliff noted that Stucky did not retain jurisdiction over the case, so if the company or the DEP are upset with the board's eventual revised ruling, they would have to file new appeals.

Board members gave all sides 21 days to file any briefs concerning Stucky's decision.

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


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