CHARLESTON – The West Virginia Supreme Court of Appeals has issued an opinion stating that a circuit judge did not have the authority to go above a Department of Environmental Protection regulator who had decided water replacement by a mining operator was not appropriate.

ERP Environmental Fund sought a writ of prohibition in connection with the Feb. 25, 2016, order of Wyoming Circuit Court compelling the West Virginia Department of Environmental Protection to direct Eastern Associated Coal to provide emergency drinking water, temporary potable water and, ultimately, permanent water replacement to residents, pursuant to the provisions of the West Virginia Surface Coal Mining and Reclamation Act, according to an Oct. 5 opinion.

Chief Justice Allen Loughry authored the majority opinion.

As grounds for seeking relief, ERP argued that the circuit court’s order was unenforceable due to both procedural and substantive infirmities.

“Upon our careful review of this matter, we find that the circuit court lacked the authority to direct the DEP to obtain water replacement for the residents on the record developed in this case,” Loughry wrote. “Accordingly, the writ of prohibition requested by ERP is hereby granted.”

On Nov. 4, 2011, the residents filed an administrative claim with the DEP in connection with an allegation that a reclaimed water impoundment on property subject to a permit held by Eastern had contaminated their well water, in violation of SMCRA.

After two years of investigating the complaint, a DEP environment resource specialist III, Dustin C. Johnson, authored a report, concluding that there was a lack of evidence. Less than two weeks later, on April 13, 2013, the residents refilled their administrative claim with the DEP.

The DEP conducted a follow-up to the original complaint and terminated the investigation into the residents’ complaint. On May 22, 2015, the residents filed another complaint with the DEP.

On Sept. 16, 2015, the residents filed a mandamus action in Wyoming Circuit Court through which they sought to require Eastern to provide water replacement. On Dec. 2, 2015, the circuit court held an evidentiary hearing  in which neither ERP or Eastern participated. The court directed the DEP to require Eastern to provide the water replacement 

“In making its ruling, the circuit court discarded the testimony and findings of the DEP’s witness, Dustin C. Johnson, preferring instead to rely on the testimony of the residents’ expert witness, D. Scott Simonton,” Loughry wrote.

Citing  Simonton’s opinion that “the presence of the hydrogen sulfide gas is an indicator of Eastern’s mining impact on petitioners’ [residents’] water sources, even though the level of sulfate concentration may not have exceeded any applicable standard,” the circuit court sua sponte determined that the residents’ “evidence of contamination demonstrates that Eastern’s mining operations impacted their sources of water.”

Not only did the circuit court lack the authority to supply the requisite finding  of water contamination necessary to grant any water replacement relief under SMCRA, but it further lacked the authority to grant relief in mandamus predicated on the DEP’s failure to perform a non-discretionary duty, according to the opinion.

Loughry wrote that the DEP had a duty to issue a notice of violation only upon its finding of a specific violation of SMCRA, but that it never found any evidence that SMCRA had been violated by Eastern.

“As the submitted record makes evident, the DEP did not fail to perform a non-discretionary duty,” he wrote. “Absent that critical element, the circuit court lacked the authority to direct the DEP to compel Eastern to supply the Residents with emergency, temporary and permanent water replacement supplies.”

Loughry wrote that given this fatal impediment to the issuance of a writ of mandamus, the court found no need to address the additional grounds for relief set forth by ERP.

“Furthermore, this court wishes to make clear that we are not deciding the issue of whether the residents’ water is contaminated,” Loughry wrote. “That issue is not before us. Our limited inquiry in this case was to determine whether the circuit court had the necessary grounds to compel water replacement to the Residents under the provisions of SMCRA. It did not.”

The writ of prohibition sought by the petitioners was granted to prevent enforcement of a writ of mandamus issued by Wyoming Circuit Court against the DEP on Feb. 25, 2016.

W.Va. Supreme Court of Appeals case number: 17-0148

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