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Persistence Pays Off in Coal Ash Permit Delays
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by Petra and John Wood | 2011

In the July/August Sierran, you read about the massive inputs of coal combustion waste (aka, fly ash) on minelands around Morgantown. On about 3,500 acres in three watersheds, up to 10,000 tons/acre — amounting to a 10-foot thick layer of coal ash over the entire surface — have been added during reclamation as a supposed beneficial use to reduce acid mine drainage (AMD). There is abundant evidence, however, that it does not necessarily reduce AMD. At the same time, it does reduce air quality and especially water quality because toxic metals and total dissolved solids (TDS) leach from fly ash dumped in minefills. Several new mine permits proposing to dump ash are in the works, including the New Hill West and Coresco permits.

Status of New Hill West permit

When the National Pollution Elimination Discharge System (NPDES) permit was approved for this 225-acre mine in 2010, Sierra Club and Appalachian Mountain Advocates challenged the permit in an appeal before the WV Environmental Quality Board (EQB). To prevent degradation of water quality in Scott’s Run before the hearing could be held, a stay on the permit was requested and granted in November 2010.

A 4-day EQB hearing in early December 2010, featured expert witnesses who presented scientific evidence that high TDS, conductivity, and sulfates can impair aquatic life, which is a violation of the Clean Water Act and of the WV Narrative Water Quality Standards (WQS). The WQS specifically state that NPDES Permit limits must ensure compliance against discharges of “… materials in  concentrations which are harmful … to … aquatic life” (47 C.S.R. § 2-3.2.e) or that cause “significant adverse impact to the … biological components of aquatic ecosystems …” (47 C.S.R. § 2-3.2.i).

In March 2011, the 5-member EQB unanimously found that DEP’s issuance of the permit was unlawful, that they failed to include enforceable effluent limits sufficient to ensure protection of water quality standards, and that discharges from the New Hill West surface mine have the reasonable potential to cause or contribute to degraded water quality. The EQB remanded the permit back to DEP to set appropriate and enforceable limits for conductivity, sulfate, total dissolved solids, manganese, and selenium.

But even though the EQB decision was based on scientific evidence and the law, the WVDEP and the mining company appealed the decision to circuit court. Interestingly, the circuit court did not actually make a ruling on this appeal. Instead, in late September 2011, Judge Stucky remanded the case back to EQB with the following statement, “The EQB shall provide written supplemental findings detailing a reasoned and articulate decision in the Final Order. Additionally, these findings should include guidance to calculate threshold values for regulating conductivity, TDS, and sulfate.”


Mine complex about 3 miles in length visible from I-79 just north of Morgantown. Part of New Hill West permit area is in the lower left of this photo.

In the meantime, the mining company filed an appeal to the EQB to lift the stay on the permit so that mining can commence. Additionally, their lawyers argue that because the company is losing $2 million a month in revenue, Sierra Club should have to post bond in this amount (see http://blogs.wvgazette.com/coaltattoo/2011/10/11/judge-sendspatriot-permit-back-to-eqb/ .

At this time, the EQB has not made a final ruling on the stay or the bond and has asked the lawyers for all parties to provide input on how to proceed with Judge Stucky’s order. Apparently, this is an unusual ruling and the EQB is “feeling its way” on how to proceed. It does appear that the issuance of a valid NPDES permit for this mine will be delayed.

Status of Coresco permits

Two permits are in play at sites near Maidsville. One is an existing 140-acre ash dump. An application for renewal of this permit is pending even though there is evidence that the site is degrading water quality and is contributing to air pollution problems. A new 338-acre Surface Mining Control and Reclamation Act (SMCRA) mine permit application is pending, even though the application specifically states that there will be NO coal mining. The application proposes to dump about 86 million tons of fly ash over 25-30 years, which will result in an unlined and uncovered ash pile 500 feet thick. This site, if permitted, will simply be a way for area power plants to dump their waste for free rather than have to pay for liners and treatment of run-off that would keep toxic metals and TDS out of our surface and ground water.

Sierra Club members and local residents requested a public meeting with WVDEP to allow public input on this permit application. The meeting, held on Monday, Oct 17, was attended by about 20 citizens, Delegates Fleischauer and Manypenny, and several media representatives. The over-riding theme of comments from attendees was that these sites are fly ash dumps that degrade our environment, affect human health, and should not be permitted under SMCRA. Sierra Club chair Jim Sconyers released the news that the Sierra Club, the West Virginia Highlands Conservancy, and the Fort Martin Community Association filed notice of intent to sue Coresco and affiliated company and property owner Mepco for violations of the Clean Water Act and the Surface Mining Control and Reclamation Act.

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