CHARLESTON, W.Va. — The state Supreme Court says Wyoming County Circuit Judge Warren McGraw “lacked the authority” to direct the state Department of Environmental Protection to require a coal company to provide water for 27 Wyoming County residents.

The Court handed down a written opinion Thursday granting a writ filed by ERP Environmental Fund (ERP), which holds the permit on the former Eastern Associated Coal Kopperston, Number 4 mine, overturning a Feb. 25, 2016, order from McGraw that the Court said was made without evidence.

MORE Read Supreme Court ruling here

Beckley Register-Herald

Wyoming County Circuit Judge Warren McGraw

The controversy over the water supply dates back November 2011 when a group of Wyoming County residents, who live in the community of Crany, filed an administrative claim with the DEP alleging the mine’s impoundment had contaminated their well water. The DEP investigated and rejected the claim saying there was no evidence of contamination. The residents filed two more complaints with the DEP and were turned down both times.

The residents then took their fight to circuit court where McGraw, a former state Supreme Court justice, sided with them and ordered the DEP, under the provisions of the West Virginia Surface Coal Mining and Reclamation Act, to require the company to provide replacement water to the residents until a permanent water system could be established.

State Chief Justice Allen Loughry, who authored the opinion handed down Thursday, said McGraw “discarded the testimony” of the DEP’s expert and instead relied on testimony of the expert witness testifying for the residents.

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Chief Justice Allen Loughry

“Citing the testimony of the Residents and their expert witness, the circuit court supplanted the DEP’s finding of no contamination with its diametric conclusion,” Loughry wrote, claiming McGraw made his finding of contamination “by cherry picking from the evidence adduced in this case.”

Loughry concluded there was no evidence to back up McGraw’s finding.

“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.

Thursday’s decision means ERP no longer has to provide water to the Crany community. ERP says it’s been costing the company $26,000 a month to deliver bottled water to the residents since December 2015 and linking the community to a permanent water system would have cost $7 million.

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Attorney Dave Barney

Residents’ attorney Dave Barney said they find the Supreme Court’s decision “very problematic” and predicted it could hurt other southern West Virginia residents who are dealing with issues concerning contaminated drinking water.

The ruling contains a key syllabus point saying from now on any water replacement order in West Virginia has to have the backing of the DEP.

“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 Surface Coal Mining and Reclamation Act,” the syllabus point said.

Loughry also took aim at the DEP in his written opinion:

“We find the DEP’s decision to support the Residents’ position on appeal rather puzzling. It is one thing to respect a circuit court’s ruling, but quite another to adopt a wholly inconsistent position. And, given the DEP’s unwavering position with regard to the lack of a SMCRA violation, this course change is not only baffling but suggests an abrogation of the agency’s duties to enforce the laws of this state,” Loughry wrote.

Loughry ended the opinion by saying the Court’s ruling really wasn’t about water contamination.

“Furthermore, this Court wishes to make clear that we are not deciding the issue of whether the Residents’ water is contaminated. 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. See W.Va. Code § 22-3-24. It did not,” Loughry wrote.

Barney said the residents and their attorneys are “weighing their options” about possible further options.

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