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A new West Virginia Supreme Court ruling could give coal operations some leverage to block citizens from seeking help from the courts when mining contaminates or eliminates their drinking water supply, according to lawyers who handle such cases.

Earlier this week, justices issued a unanimous ruling that threw out a Wyoming County Circuit Court decision that the state Department of Environmental Protection order a local mining operation to provide a replacement water supply for more than two-dozen families in the Crany Branch area. The ruling said that Wyoming Circuit Judge Warren McGraw was wrong to order the DEP to take that action.

Writing for the court, Chief Justice Allen Loughry said state law does not give McGraw the authority to step in if DEP regulators have decided that water replacement by the mining operator wasn’t appropriate.

“A finding by the West Virginia Department of Environmental Protection of contamination, diminution, or interruption to an owner’s water supply is a prerequisite to the issuance of any water replacement relief under the West Virginia Coal Mining and Reclamation Act,” Loughry wrote in a new point of law contained in the 12-page decision.

Charleston lawyer Ancil Ramey, who argued the case for the coal company, said he was “gratified” by the ruling and that “it was the correct result.”

But mining law experts and lawyers who represent citizen organizations or environmental groups were surprised by Loughry’s language, and worried Friday about how broadly coal company lawyers and lower courts might interpret it.

“It’s vague and it’s unclear,” said Pat McGinley, a longtime West Virginia University environmental law professor who frequently represents citizens in lawsuits against mining companies. “It will give coal company lawyers the opportunity to argue that nobody is entitled to water replacement unless [the] DEP finds the permittee was responsible.”

Federal and state environmental laws require coal companies to provide replacement water supplies if their mining operations have caused “contamination, diminution, or interruption” of an existing residential supply, such as groundwater for a well. Under the 1977 federal Surface Mining Control and Reclamation Act, citizens also were given broad authority to enforce the provisions of that law themselves, through independent lawsuits against mining operators and coal-state regulatory agencies, which often have deep ties to the industry.

In the Crany Branch case, the citizens filed suit against the DEP after agency officials refused to order Eastern Associated Coal or its successor company, ERP Environmental Fund Inc., to provide them with replacement water. The citizens had alleged that a coal-slurry impoundment was leaching contaminants into their drinking water.

While the DEP conceded that some water samples exceeded safe limits for some contaminants, the agency said it did not believe the mining operation was the cause. The DEP pointed to a nearby coal-waste dump from before passage of new mining laws as a possible source, but the citizens said the company had continued to use that dump until the mid-1980s, making it subject to the state and federal laws.

Strictly speaking, the Supreme Court ruling was throwing out McGraw’s decision to grant the citizens’ request for a writ of mandamus, a type of court order instructing a lower government official to comply with their legal duties.

In his decision, Loughry said McGraw could grant such a request only if the DEP had failed to act “in the face of unmistakable evidence of water contamination associated with the impoundment,” and that, “as the record makes clear, that was not the case here.”

Loughry said the circuit court “supplanted the DEP’s finding of no contamination” with its own “diametric conclusion” that the mining operation had affected the water supply. McGraw, though, actually cited in his decision the testimony of an expert for the citizens who offered evidence and conclusions that were contrary to the DEP’s findings.

Kevin Thompson, an attorney for the citizens, said the ruling leaves the impression that West Virginians no longer may get their own experts to bring cases to protect their water supplies, unless DEP officials agree with the citizens’ position. He said he is considering an appeal to the U.S. Supreme Court.

“This decision guts the ability of coalfield residents to stand up for themselves when heavy metals from slurry impoundments contaminate their well water,” Thompson said.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

Environment Reporter