Coal Tattoo

Judge sends Patriot permit back to EQB

Legal wrangling over Patriot Mining’s proposed New Hill West mountaintop removal mine in Monongalia County is set to resume this week, following a ruling by Kanawha Circuit Judge James Stucky on a company appeal.

Readers may recall that the state Environmental Quality Board in March ruled against the West Virginia Department of Environmental Protection, saying that WVDEP wrongly failed to include discharge limits for conductivity — and also for sulfates and total dissolved solids, or TDS — when it approved the permit. (See here, here and here for previous coverage).

Well, Patriot Mining (then part of International Coal Group, which has since been bought by Arch Coal) and WVDEP both appealed to Kanawha Circuit Court, and we now have this ruling from Judge Stucky. The judge did not overturn the EQB decision, but he didn’t really uphold it, either. Instead, the judge basically said the EQB didn’t make clear the reasons for its decision. He sent the case back to the board, with instructions that they:

… Provide written supplemental findings detailing a reasoned and articulate decision …

And now, the company has filed a motion asking the board to clarify its previous decision to block the permit pending the outcome of the case. Company lawyers explained:

The Court’s order did not expressly address the stay that has now been in place for over ten months, but because the original stay was intended to last only until the Board ruled on the merits, and because the Court effectively vacated the Board’s order, Patriot believes the Board’s stay is no longer in effect, and by this pleading notifies the Board and parties that it may commence operations in the near future. Should the Board disagree and believe the stay is still in effect, then Patriot hereby moves to dissolve the stay.

In this motion, company lawyers argue that Patriot needs production from the New Hill West Mine to meet its coal contracts with the Morgantown Energy Associates power plant.  They say that the company’s net earnings have dropped by $2 million a month because of the ruling. If the EQB won’t lift its stay, Patriot wants the Sierra Club — plaintiff in the case — to be forced to post a $2 million per month bond to cover any losses, should the company eventually win the appeal.

And you’ve got to hand it to my good friend Bob McLusky, for this explanation of why the bond amount requested is reasonable:

The Sierra Club can easily afford it, as its own websites discuss the recent $50 million gift it has received from the Bloomberg Philanthropies.

The EQB has scheduled a hearing on the company’s motion for Friday morning … we’ll see if board members agree with Bob.