Peter Morgan peter.morgan@apps.sierraclub.org 4/27/2011 3:12 PM >>>
As expected, WV DEP has appealed our win before the WV Environmental Quality Board in which we successfully challenged a CWA discharge permit for a surface mine that failed to contain limits on conductivity, TDS, sulfate, and selenium. I've also heard that the company filed its own appeal, though I have not seen that yet. This Greenwire story puts this case in context of recent EPA action on conductivity. It also includes good quotes from local Sierra Club member Petra Wood. We intend to defend the EQB's good decision.
6. WATER POLLUTION: W.Va. officials bicker over conductivity standard for mountaintop mining (04/27/2011)
Manuel Quinones, E&E reporter
West Virginia environmental regulators are at odds over setting a water conductivity standard and other safeguards to protect the environment from mountaintop removal mining. The discussion comes amid a White House review of a U.S. EPA interim guidance document setting a federal conductivity standard for reviewing Appalachian mining permits.
The West Virginia Department of Environmental Protection (DEP) is appealing in court a decision by the state's Environmental Quality Board ordering the agency to modify its permit for a Patriot Mining Company Inc. strip mining project in Monongalia County. In issuing its decision, the board sided, at least in part, with environmentalists who urged permit modifications, including a numeric standard for conductivity in nearby waterways.
"This particular permit had no limits on conductivity, sulfates, really not much of anything," Petra Wood, a Sierra Club member involved in appealing the permit, said in an interview.
At issue is a state National Pollutant Discharge Elimination system or NPDES permit, which EPA reviews. This particular project does not require a Section 404 Clean Water Act permit from the Army Corps of Engineers.
The Environmental Quality Board -- a panel of five experts appointed by the governor for five-year terms -- did not set the conductivity standard as environmentalists wanted but called on the DEP to include one as part of a revised permit. The decision thrust the board into a national debate over the proper way to examine mining's effects to Appalachian waters.
Conductivity is the measure of how well waters can carry an electric charge. An EPA study has found higher conductivity levels downstream from mountaintop mines and valley fills ( http://www.eenews.net/eenewspm/2010/04/01/archive/1 E&ENews PM, April 1, 2010). While conductivity is not in itself a pollutant -- a point DEP is stressing in its appeal -- environmentalists and researchers are increasingly using it as a barometer of water health.
"The board finds that the mining operation has the opportunity and potential to improve water quality," said Board Chairman Edward Snyder when issuing the ruling last month. "The board finds that there is a strong positive correlation between conductivity and diminishing macro invertebrate community health."
But the DEP believes the board overstepped its legal bounds by mandating a conductivity standard. "Neither [the Environmental Quality Board] nor the DEP have the authority to impose a water quality standard that does not currently exist in state law," DEP attorney Jennifer Hughes said in an email exchange.
And even though the board's decision applied to a specific permit, DEP officials believe it sets a precedent for future action.
"This appeal has never been about this one permit modification," Hughes said. "It has always been an attempt to impose a statewide numeric standard for conductivity through a back-door process."
Environmental advocates are dismayed at what they see as the state's assault on efforts to protect the environment from mining. "It's kind of hard to understand in my mind," Wood said.
But West Virginia politicians have usually been keen to protect the mining industry, worried about jobs and the economy.
"This was the worst ruling I've ever seen out of the Environmental Quality Board as far as a lack of respect for the rule of law," DEP Secretary Randy Huffman told reporter Ken Ward Jr. with The Charleston Gazette.
Part of the appeal, pending before the Kanawha County Circuit Court, is the DEP's objection to the board considering EPA's interim guidance and related information, including the agency's study on conductivity, something the Sierra Club highlighted as part of its efforts to modify the mining permit.
"DEP believes that, at best, the evidence presented by the Sierra Club demonstrated that there may be a correlation between high conductivity levels and the loss of certain sensitive species," Hughes said. "The evidence did not show that high conductivity levels cause harm to aquatic life."
The National Mining Association is fighting the guidance in court, saying it amounts to rulemaking without the agency going through the proper channels, and the state of West Virginia along with DEP are plaintiffs in the case.
Earlier this month, the mining group released a study of its own aimed at undercutting EPA's findings. The report, prepared by Denver-based GEI Consultants Inc., questioned EPA's assumptions about aquatic bugs and considered other findings flawed ( http://www.eenews.net/eenewspm/2011/04/01/archive/4 E&ENews PM, April 1).
Testing conductivity
Opponents of EPA's guidance, especially lawmakers in Congress, say commercially sold water like San Pellegrino and Perrier exceed the agency's numeric standard for conductivity. They say it is evidence of the agency's overreach and its agenda to curtail coal mining in Appalachia.
"People who are working the mines in my district are very concerned that the waters coming out of the mines have to be better than Perrier," said Rep. Morgan Griffith (R-Va.) in an interview earlier this year while pushing a budget rider to stop EPA from enforcing the guidance.
The website PolitiFact, which routinely checks politicians' assertions, found that Evian, Perrier and San Pellegrino did in fact exceed EPA's standard. However, scientists and advocates say opponents are missing the point and ignoring the effects of conductivity on Appalachian wildlife.
"The science demonstrates that stream life present in waters contaminated by mine waste is killed when salinity levels rise above levels that would not be toxic to humans who may drink such water," EPA spokesman Richard Yost told PolitiFact. "Aquatic organisms and people respond to salinity in very different ways, so it is not technically valid to make direct comparisons between healthy levels of salinity in central Appalachian streams and acceptable levels of salinity in drinking water."
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Peter Morgan Project Attorney
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