DEP Appeals Environmental Quality Board Decision Remanding Patriot Mining NPDES Permit

The West Virginia Department of Environmental Protection, Division of Mining and Reclamation, has appealed the Environmental Quality Board's decision remanding the NPDES permit for Patriot Mining's New Hill West mine to require the DEP to, among other things, perform a reasonable potential analysis for arsenic, conductivity, sulfate and total dissolved solids (TDS) and to develop permit limits for conductivity, sulfate and TDS.  The appeal filing is here, courtesy of Ken Ward at Coal Tattoo.

One error alleged by the State  is the Board's refusal to restrict reliance on EPA's guidance for Appalachian coal  surface mining, in which EPA used a questionable methodology to impose limits on surface mine discharges based on conductivity. The guidance was undergoing further review, but the Board still allowed the Sierra Club to rely on the findings in it as support for its appeal. The DEP filed a motion in limine, but it was deemed to be filed late, and an oral motion in limine was rejected.

The EPA guidance poses significant problems for mining, but its underlying premise is troubling for anyone with an NPDES permit. Permits  issued pursuant to the Clean Water Act have to contain limits that will result in compliance with water quality standards.  In the past, that has meant meeting the numeric limits in the state water quality standards (47 CSR 2) for specified substances, like iron or benzene.  However, there are also vague narrative criteria (Section 3) that prohibit conditions in state waters, such as color, sediment, or toxicity to aquatic life.  The EPA seized upon the toxicity portion of the narrative water quality standards and concluded that marginal reductions in certain Mayfly populations were evidence of toxicity, and that a proxy for that toxicity was conductivity. (Conductivity is the measure of ions in water, and is often used as a means of estimating dissolved solids.)  Using imprecise biological measurements and EPA's guidance, the Sierra Club was successful in convincing the Board in this appeal that there was some impairment likely to be caused in certain aquatic or benthic species, resulting in a violation of the narrative water quality standard, and therefore additional  permit limits  were needed.

Another error alleged by the State is the Board's decision with regard to those permit limits. On the one hand, it required the DEP to perform a "reasonable potential" (RP) analysis to determine whether the mine's discharge could violate water quality standards for arsenic, conductivity, sulfate and TDS.  On the other hand, it must have presumed the RP analysis would show the need for limits, as it required limits for conductivity, sulfate and TDS.

There's another question that is posed by the DEP's appeal, but not raised in the appeal notice - whether the EQB has the authority to remand permits to the DEP for modification.  Remand is clearly allowed by the WV Administrative Procedures Act, but that section is overridden by WV Code 22B-1-7(g) which gives the Board authority to approve, vacate or revise a permit, but does not mention remand.  The Board has historically remanded permits with no objection by either party, but I believe the Board's authority to do so may be questioned in the near future. I imagine that Jennifer Hughes, the DEP's very capable attorney, felt she had enough on her hands without taking that issue up as well.