By Order dated February 13, 2013, the Circuit Court of Kanawha County (WV) reversed the West Virginia Environmental Quality Board’s (“EQB”) latest decision in a case involving an NPDES permit for a small surface mine in the northern part of the State. See Sierra Club v. WVDEP and Patriot Mining, No. 11-AA-02 (Feb. 13, 2013). There, the permit had been issued without limits on conductivity, total dissolved solids (“TDS”) or sulfate. The Sierra Club challenged the permit before the EQB, arguing that the permit should include numeric limits on conductivity, TDS and sulfate in order to ensure that the State’s narrative water quality standard (as measured by an aquatic insect index known as the West Virginia Stream Condition Index—or “WVSCI”—was protected. The limits that the Sierra Club sought likely could be met only with the use of reverse osmosis—a ruinously expensive technology for any surface mine.
In an initial decision from March 2011, the EQB ruled that WVDEP should conduct a “reasonable potential” analysis as to whether the permit would likely violate the narrative standard as a result of conductivity, TDS and sulfate discharges—an easier task to delegate than to explain, because the correlation between WVSCI scores and levels of conductivity, TDS and sulfates is relatively low until levels of conductivity and concentrations of TDS and sulfate are quite high. Simultaneously, though, it also ordered that WVDEP impose enforceable limits for conductivity, TDS and sulfate. Thus, the decision ordered WVDEP on the one hand to determine if the discharges of conductivity, TDS and sulfate posed a sufficient risk of violating the narrative standard that they should be regulated, but on the other hand, seemingly answered the question itself and ordered WVDEP to impose numeric limits on conductivity, etc.
At stake in the case was whether and to what extent the State must limit conductivity and who gets to determine what level of impacts on aquatic insects is permissible. WVDEP has taken the position that in the conductivity ranges the Sierra Club argues must be maintained (~ 300 microsiemens per centimeter) there is a poor correlation between conductivity and WVSCI scores, and the use of a conductivity standard in this range is unreasonably overprotective because there are still many high WVSCI scores. While the correlation tightens as conductivity increases, the policy question here is who gets to decide whether a correlation is sufficiently tight to regulate a substance and at what threshold. That was the issue that the EQB never fully grasped or addressed.
Both WVDEP and the Permittee challenged the ruling as to the narrative standard and its relationship to conductivity, TDS and sulfate. They claimed that the EQB’s ruling was internally inconsistent and that the Board had not articulated the basis of its decision sufficiently for the Court to review it. The Circuit Court of Kanawha County agreed and, in September 2011, remanded the matter to the EQB. The Court expressly directed the EQB on remand to explain the role of the WVSCI and how WVDEP should develop threshold values for conductivity, TDS and sulfate if it continued to insist that WVDEP must regulate them.
On remand, the EQB issued another lengthy decision in July 2012. This time, it again inexplicably ordered both a “reasonable potential” analysis and the imposition of numeric limits on conductivity, TDS and sulfate. In an apparent effort not to deal a crippling hand to the Permittee, the EQB ruled that the limits should not increase the conductivity by more than 2% in the receiving stream, but also ordered WVDEP to use EPA’s “Field-Based Aquatic Life Benchmark for Conductivity” in this effort.
That EPA benchmark suggested that conductivity values should not exceed 300-500 uS/cm to protect aquatic insects—an impossibly low limit for nearly all earth-disturbing activities in central Appalachia. Indeed, the Sierra Club had argued that the benchmark effectively prohibited the mine from adding any conductivity to the receiving water. Both WVDEP and the Permittee appealed again to the Circuit Court. They both argued that the EQB had failed to consider and defer to the reasonable interpretations WVDEP had given to the ambiguous narrative standard, and had instead directed it to use EPA’s benchmark as a water quality standard. By Order of February 13, 2013, the Circuit Court agreed and reversed the EQB’s second order.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.