CHARLESTON, W.Va. -- Gov. Earl Ray Tomblin has replaced two members of a state appeals board that is in the middle of a major case that focuses on implementation of new federal water-quality guidance for mountaintop removal mining permits.
Late last week, Tomblin named two new members for the West Virginia Environmental Quality Board, replacing board members Ted Armbrecht and James Van Gundy as the board considered the permit for Arch Coal Inc.'s New Hill West Mine in Monongalia County.
Armbrecht, a Charleston businessman and conservation advocate, and Van Gundy, a retired Davis & Elkins College biologist, had taken part in a unanimous board ruling in March, ordering the West Virginia Department of Environmental Protection to add new water-quality limits to the mine's water pollution permit
However, as frequently happens with state boards and commissions, Armbrecht and Van Gundy were continuing to serve several years after their terms had officially expired. Such service is considered legal until a governor reappoints the board members or replaces them with someone else.
Tomblin appointed Marshall University science dean Charles Somerville and West Virginia Geological Survey coal program manager Mitch Blake to take their spots on the five-person board.
"The terms of Mr. Armbrecht and professor Van Gundy have been expired since 2008 and 2009, respectively, and they have been holding over until their successors are appointed," said Tomblin spokeswoman Jacqueline Proctor. "Governor Tomblin appreciates their service to the state.
"The governor makes appointments to boards and commissions every day," Proctor said. "In fact, he had appointed over 50 individuals between the redistricting special session and the most recent special session certifying the gubernatorial election."
Armbrecht had served on the EQB for nearly a decade, after being appointed in June 2002 by then-Gov. Bob Wise. Van Gundy was appointed in 2005 by then-Gov. Joe Manchin.
"I'm very positive on my years on the board, and I'm sorry that they will be over," Armbrecht said Tuesday. "I think that the work of that board in protecting the waters of the state is truly critical to our future."
Armbrecht, who is known for trying to convince other state business leaders to pay more attention to environmental concerns, said the board had been able to cooperate and reach unanimous decisions in many cases, despite differing views of many issues.
"People of different backgrounds -- business, and academia and the environment -- have really worked together," Armbrecht said.
The terms of the board's other three members, including longtime chairman Ed Snyder, also have expired.
Tomblin's shakeup of the board comes less than a month before a crucial meeting in mid-December, when board members will consider their response to a circuit court ruling in the New Hill West permit case.
In September, Kanawha Circuit Judge James Stucky sent the matter back to the board, ruling that they did not provide enough details in their initial decision. Stucky did not overturn the board on the merits on the case, but instructed its members to come up with "written supplemental findings detailing a reasoned and articulate decision."
Board members on Nov. 10 refused to continue a stay blocking further mining activity, but also said environmentalists likely will win their case.
The appeal focuses on efforts by the Sierra Club to force the DEP to apply to state permits new federal Environmental Protection Agency water-quality guidance on electrical conductivity.
Scientists use electrical conductivity as a key indicator of stream health and the presence of other important pollutants such as chlorides, sulfides and dissolved solids. Recent research has found increased conductivity downstream from mining operations in Appalachia and scientists have linked impaired aquatic life to those increased conductivity levels.
In their March ruling, board members had ordered the DEP to add conductivity limits to the New Hill West permit.
DEP Secretary Randy Huffman had said the decision was "the worst ruling I've ever seen out of the EQB as far as a lack of respect for the rule of law."
The DEP is challenging the EPA water-quality guidance in federal court, arguing that the Obama administration is usurping state authority to regulate water pollution.
Tomblin's board appointments come less than a week after he was sworn into office, promising in an inaugural speech to protect the state's coal industry from federal regulators.
"We will continue to take on the federal government and oppose efforts by the EPA and others to stop production of the most efficient fuel our country knows," Tomblin said.
In his ruling, Stucky faulted the EQB for not recommending to the DEP a specific level of conductivity that should be allowed in state waters.
Ironically, the board previously had authority to write state water pollution standards, but that authority was shifted to the DEP in 2005, in large part at the behest of various state industries. Now, the board's job is only to hear appeals of DEP permitting and enforcement decisions regarding water pollution matters.
Reach Ken Ward Jr. at firstname.lastname@example.org or 304-348-1702.