A couple news items lately on the appeal, and a story on our fight against gas drilling in state parks. I also had an interview with the local television station, which ran Tuesday night and Wednesday morning (at least) but I did not see either of them.
Jim Kotcon
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Permit for New Hill mine delayed: Sierra Club files appeal with DEP BY DAVID BEARD The Dominion Post
Although Patriot Mining Co.'s permit application to expand its New Hill surface mine, near Cassville, has reached its last milestone, the story isn't over. Sierra Club has filed with the state Environmental Quality Board to appeal the mine's water discharge permit - the National Pollutant Discharge Elimination System (NPDES) permit. And the surface mine permit itself has not been issued yet, a Department of Environmental Protection (DEP) official said. The surface mining application seeks to expand the New Hill mine by 225 acres. The state DEP milestone chart for the application shows that all the milestones have been achieved and the permit was printed Sept. 2. But DEP spokeswoman Kathy Cosco said the agency wants some additional information and Patriot cannot disturb the land covered by the permit. Sierra Club West Virginia Chapter spokesman Jim Kotcon said the NPDES permit lacks limits for potential pollutants - heavy metals and other toxins contained in mine runoff and fly ash. The appeal seeks to have the permit rescinded or modified to include limits. Patriot applies fly ash - a coal combustion byproduct trucked in from the Morgantown Energy Associates power plant - to mined areas to prevent acid mine drainage. Sierra Club said fly ash contains potential pollutants - arsenic, lead, mercury, selenium and others - that could leach into a tributary of Scotts Run, Scotts Run itself and then into the Monongahela River. New information from the U.S. Environmental Protect Agency indicates fly ash may be more dangerous than originally believed, he said, but the DEP did not include toxin limits in the permit. "West Virginia DEP is still using outdated testing procedures to evaluate the toxicity of coal ash," Kotcon said in a release. The club wants the Environmental Quality Board - a division of the DEP - to require the DEP to comply with NPDES permitting requirements and set limits for pollutants. The DEP previously said it has adequate data for its decisions, the EPA had no issues with the surface mining permit, and Patriot will be required to perform regular testing of surface and groundwater locations. An evidentiary hearing is set for Nov. 18. Board spokeswoman Jackie Shultz said the appeal process could take months, depending on a number of variables. Patriot's attorney in the appeal said he was just familiarizing himself with the case and couldn't comment on it. Patriot did not respond to requests for comment.
THE STATE JOURNAL Thursday 23 September 2010:
Sierra Club Files Appeal with DEP Over Proposed Cassville Surface Mine Posted Tuesday, September 21, 2010 ; 11:06 PM Updated Wednesday, September 22, 2010; 07:23 AM
The Sierra Club says its concerned about water quality issues for the New Hill West mine.
By Mike Krafcik
MORGANTOWN -- The Sierra Club has filed an appeal to challenge the West Virginia Department of Environmental Protection's water permit for the New Hill West mine in Cassville.
The notice was filed with the West Virginia Environmental Quality Control Board.
The permit was issued to the Patriot Mining Company for the 225-acre strip mine. The Sierra Club said the permit does not adequately control the water pollution that comes from this site.
Patriot Mining officials have indicated they would intend dump 1,000-10,000 tons of coal combustion waste per acre of mined area.
The club said the DEP standards fail to include any limits for toxic heavy metals that come from fly-ash and coal combustion bi-products.
The Sierra Club said the DEP is using out-dated testing procedures that will undermine the risks to ground water and streams from the ash disposal at mine sites.
"The DEP needs to have a pollution prevention plan in this permit that assures that any discharges from the mine will meet any water quality standards, they have not done that," said Jim Kotcon, of the Sierra Club West Virginia.
The Sierra Club's appeal will be heard as part of a evidentiary hearing before the Environmental Quality Board scheduled for November.
Charleston Gazette Thursday 23 September 2010:
September 22, 2010
Court urged to block state park drilling
By Ken Ward Jr.
The Charleston Gazette
CHARLESTON, W.Va. -- West Virginia regulators and state environmental groups on Wednesday urged the state Supreme Court to uphold a Department of Environmental Protection decision to block new oil and gas drilling at Chief Logan State Park.
The Sierra Club, the West Virginia Highlands Conservancy and Friends of Blackwater joined the DEP and the state Division of Natural Resources in asking justices to overturn a lower court ruling to allow the drilling by Cabot Oil and Gas joined DEP lawyers.
In December 2007, then-DEP Secretary Stephanie Timmermeyer rejected Cabot's permit requests, citing a section of state park law that prohibits mineral extraction. Logan Circuit Judge Roger Perry overturned the DEP decision and the Manchin administration appealed.
"We believe that we're not allowed to allow drilling on state park surface," DEP lawyer Kristen Boggs told justices during an argument Wednesday.
Justice Menis Ketchum repeatedly asked lawyers on all sides if the DEP permit denial amounted to a "taking" of private property that would require the state to compensate Cabot and the Lawson Heirs, a family company that owned the park land 50 years ago and much more recently leased the gas reserves to Cabot.
Cabot lawyer Timothy Miller and Lawson Heirs attorney Larry George agreed, as did Perry in the lower court ruling.
DNR lawyer Tom Smith told justices the underlying issues in the case are important and could involve drilling and mining in parks across the state.
"You can smell the money in this case," Smith said.
But Smith said the case before the court is really much more narrow, and involves only the question of whether the DEP can invoke a section of parks law -- which technically involves DNR -- in rejecting a drilling permit.
And Tom Rodd, a lawyer for citizen groups that intervened in the case, said that any issue involving whether the drilling ban is a "taking" must be resolved in a separate suit brought by Cabot or the Lawson Heirs, not in an appeal of DEP's permit denial decision.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.