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Judge Tosses OSM Water Rule Approval

Posted on: Wednesday, 5 October 2005, 00:00 CDT

By Ken Ward Jr.

kward@wvgazette.com

Federal regulators were wrong to approve a state rule change that weakened the limit on the amount of damage coal operators can do to West Virginia streams and groundwater, a federal judge has ruled.

Late last week, U.S. District Judge Robert C. Chambers threw out the federal Office of Surface Mining's approval of a complicated change in definitions used in the review of new mining permits.

Chambers said that OSM "cannot simply rubber-stamp" state Department of Environmental Protection rule changes.

The ruling, issued Friday, could force DEP to abandon a rule change that would allow the state to approve mining operations that it knows will cause water pollution violations.

Chambers ruled in the latest in a string of legal battles over how the state measures and considers the water quality impacts of new strip mines.

The Ohio Valley Environmental Coalition, the Citizens Coal Council and the Hominy Creek Preservation Association filed the latest suit. The groups are represented by Walt Morris, an environmental lawyer based in Charlottesville, Va.

Before approving permits, DEP officials are required to conduct detailed studies, called Cumulative Hydrologic Impact Assessments, or CHIAs, that examine potential effects of mining on water quality.

Under the law, DEP officials cannot approve new mining permits that would cause "material damage" to streams or groundwater outside the permit area. OSM never defined the term "material damage," but said that states should do so.

For more than a decade, West Virginia relied on a broad definition of "cumulative impact" when doing its CHIAs.

In that definition, regulators tried to account for the potential impacts on streams of multiple mining operations in the same watershed.

The definition said, for example, that, "individual mines within a given cumulative impact area may be in full compliance with effluent standards and all other regulatory requirements, but as a result of the co-mingling of their off-site flows, there is a cumulative impact."

The definition added, "When the magnitude of cumulative impacts exceeds threshold limits or ranges as predetermined by the [DEP], they constitute material damage."

In May 2001, the DEP proposed to eliminate its definition of cumulative impacts and replace it with a definition of material damage.

Under the proposal, material damage would mean, "any long term or permanent change in the hydrologic balance caused by surface mining operation(s) which has a significant adverse impact on the capability of the affected water resource(s) to support existing conditions and uses."

The West Virginia Rivers Coalition opposed the change. So did the U.S. Fish and Wildlife Service.

U.S. Environmental Protection Agency officials said the change in definition "would leave the term vague and would subject it to individual interpretation." EPA recommended that the material damage definition be broadened to specifically include violations of state water quality standards.

In December 2003, Interior Secretary Gale Norton, whose department oversees OSM, approved the rule change anyway.

The environmental groups filed suit in U.S. District Court in Huntington to challenge the move.

In his eight-page opinion, Chambers said that the DEP rule change "moved away from the specific, numeric standard of predetermined thresholds and ranges to define and measure material damage.

"In its place, DEP substitutes what it characterizes as a 'narrative' standard which defines material damage as 'long-trem or permanent change' which has 'significant adverse impact' on 'existing conditions and uses,'" Chambers wrote.

Chambers noted that DEP officials said that the new language provides "some objective criteria" and would diminish the "unguided discretion" of individual permit reviewers.

"This reasoning is suspect," Chambers wrote. "These terms substitute a subjective, and potentially inconsistent, judgment in place of an objective standard."

To contact staff writer Ken Ward Jr., use e-mail or call 348- 1702.

Source: Charleston Gazette, The

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