CHARLESTON -
Despite finding that state regulators "flagrantly violated the law" in issuing a surface mine permit, the Surface Mine Board upheld a 250-acre surface mine permit on Coal River Mountain. Now residents are appealing the decision.
According to a news release from Coal River Mountain Watch, citizens Bo Webb, Rob Goodwin, Debbie Jarrell and Amber Whittington, all members of Coal River Mountain Watch, originally appealed the West Virginia Department of Environmental Protection's decision to issue the permit in November 2011. The Surface Mine Board upheld the DEP'S decision to issue the permit in a June 26 ruling.
This week, the same citizens filed an appeal of the Collins Fork Permit in Kanawha County Circuit Court. According to the group, the DEP waited three years to hold a public hearing on the permit, even though state law requires the hearing to be held within three weeks of the close of the public comment period.
The Surface Mine Board pointed out the violation in its ruling but still upheld the permit.
"The Board finds it outrageous that WVDEP flagrantly violated the law by waiting more than three years after the initial comment period to hold an informal conference on the permit decision," the board stated. "It is clear from the testimony and admissions of counsel that WVDEP chose to violate the law by not holding the informal conference within the time frame outlined by statute."
The appeal said the approval should be revoked "because the DEP took three years to what is legally required to be done in three weeks."
Citizens appealing the decision said their appeal is based on DEP failure to follow procedure and a failure to consider recent scientific evidence regarding cumulative impacts of surface mining. The Marfork Coal Company, a subsidiary of Alpha Natural Resources, applied for the permit in 2008.
The order from the Surface Mine Board essentially concludes that there was a procedural violation of the law. However, the board also found no other deficiencies in the permit. Because the board found no other flaws in the permit, it says the appellants request would not remedy the three-year delay in hosting a public hearing.
One board member, Jon Blair Hunter, dissented in the order, stating that he would have remanded the permit back to the DEP for an additional comment period and informal conference.
"WVDEP justified its actions by saying a reduction in acreage of this permit benefited the citizens who commented on the permit; however, a major revision removing plans that Coal River Mountain Watch supported to reclaim a problematic slurry impoundment also occurred without a proper comment period," the news releases states.
In their appeal to the Kanawha County Circuit Court, the residents described the case as "an extreme example of how the citizens of the State of West Virginia have nothing more to rely upon in reigning in the DEP when they absolutely ignore the laws of the state."
"If we can't follow the West Virginia statutes and the West Virginia code in looking at these permits from the perspective of citizens, what are we supposed to follow?" said Thomas Rist, the attorney representing the citizen group.
"I don't think that's been done effectively in this permit," Rist said. "So we're asking you guys to basically deny the permit. Stop the mining."
Joseph Jenkins, attorney for the DEP said the problem with following the code "to a tee" as far as public comment is true, and not isolated to that permit.
"In fact, the way the system is set up, this has been a problem for several years," he said. "This board is well aware we've run into this issue before given the way that the time frames are set with regard to informal conferences, public comment and when we have to issue permits."
He said that while the DEP did not follow the law technically, it did follow the spirit of the law without any prejudice committed against the public.
Jenkins told the board that the permit was originally more than 800 acres and had been reduced to about a third of its size and has fewer valley fills.
According to Jenkins, if procedure would have been followed, citizens would have been commenting on a permit before it was in its final form. He said if the law had been followed technically, citizens would have commented on a law "that looks nothing like it does today."
Aside from the procedural flaw, the appellants were also attempting to revoke the permit based on health effects. Before the Surface Mine Board, Rist, according to court recorder transcripts, said that the DEP failed to look at the health impacts of issuing the Collins Fork permit.
Jenkins said the DEP acknowledges health studies that are out there, but it can't use them in the sort of broad way some would expect. Jenkins said the DEP seeks studies that show causation and not just correlative effect. Then, he said, the DEP can determine the parameters necessary to regulate in the interest of public health.
"We need to know what we need to regulate, not just mining, not just AEP's power plant," Jenkins told the board. "… With these studies, they don't pinpoint any particular kind of mining, any type of parameter, or anything that can point to these health studies. It's just a correlated effect."
The attorney for Alpha told the board that the site was remining an unreclaimed mine site and would provide about 50 jobs.
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