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W.V. Agency Needs|Permits to Reclaim Mines

(CN) - The 4th Circuit rejected a West Virginia agency's attempts to avoid Clean Water Act permitting requirements as it reclaimed abandoned coal mines.

Coal mining contaminates water by releasing substances such as iron and manganese, which lower pH and make water excessively acidic. This acidic water can be neutralized through an expensive process of mechanically increasing the pH balance.

For this reason, mining companies must post bonds, which can be forfeited for the purpose of reclaiming a mining site.

The West Virginia Highlands Conservancy and another group sought bond forfeit for 18 coal mining sites in northern West Virginia. The West Virginia Department of Environmental Protection refused to get permits, despite acknowledging ongoing pollution at these sites.

The department argued that the permitting system applied to only new discharges, not to cleaning up pollution from coal companies that operated mines at the site.

"The statute takes the water's point of view: Water is indifferent about who initially polluted it so long as pollution continues to occur," Judge J. Harvie Wilkinson wrote for the three-judge panel.

Because the state runs its own permitting system under the Clean Water Act, it argued that it would be "absurd" for the agency to apply for permits, and then police its own inevitable violations.

The federal appeals court in Richmond, Va., agreed with the trial court that the plain language of the Clean Water Act requires any entity discharging pollution to obtain permits.

"We take the statute as it is, not as [the department] wishes it would be," Wilkinson wrote for the unanimous panel. "We are not in the business of rewriting laws whenever parties allege it is difficult to comply with them.

"Exempting the state ... risks sending the wrong message to mining companies: don't bother complying with the permits, because the state won't either," Wilkinson concluded.

The appellate court upheld an injunction requiring the state agency to apply for permits. To date, the agency has issued draft permits, on which the EPA has commented. Final permits should be completed by mid-January of next year.

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