Just in this afternoon (thanks to a tweet from former WVDEP lawyer Joseph Jenkins), a West Virginia state court judge has for the second time overturned the state Environmental Quality Board’s ruling that demanded tougher permit reviews and tightened water quality limits when the state Department of Environmental Protection issues water pollution permits for coal-mining operations.
For those who have forgotten, here’s what the case is about:
EQB members ruled in a case in which the Sierra Club challenged 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 in Monongalia County.
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.
And here’s some more background:
“The board finds 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 board ruling said. “The science also demonstrates that these discharges cause harm to aquatic life and significant adverse impacts to aquatic ecosystems in these streams.”
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.
Some readers my recall what WVDEP Secretary Randy Huffman previously said about the EQB’s original ruling:
This was the worst ruling I’ve ever seen out of the EQB as far as a lack of respect for the rule of law.
In short, this is what Judge Stucky said:
After a thorough review of the record, it is evident that the EQB accorded no deference to WVDEP’s interpretation of water quality standards. In fact, the EQB orders that the EPA’s narrative guidance be followed, instead of using WVDEP’s Narrative Guidance. This Court finds that to apply EPA’s Narrative Guidance would infringe on the authority afforded to WVDEP. Therefore, the Court concludes that the EQB’s decision was arbitrary and capricious.
One thing that’s interesting about that is that for many years, the law in West Virginia has clearly been that WVDEP is not due any deference in cases before the EQB. At least that’s what the state Supreme Court said in this case from 1997:
Appeals of a final agency decision issued by the director of the division of environmental protection shall be heard de novo by the surface mine board as required by W.Va. Code, 22B-1-7(e) . The board is not required to afford any deference to the DEP decision but shall act independently on the evidence before it.