Stucky Returns Mining NPDES Permit Appeal To Environmental Quality Board

On April 27th  I posted on the West Virginia Department of Environmental Protection's appeal to the Kanawha County Circuit Court of a decision of the Environmental Quality Board  -  "DEP Appeals Environmental Quality Board Decision Remanding Patriot Mining NPDES Permit."  Judge Stucky heard the appeal and agreed with the DEP and Patriot Mining that the EQB failed to explain how the DEP was to establish numeric limits in the permit that would protect narrative water quality standards:

 In order to comply with the EQB's Final Order, WVDEP would have to determine the
specific levels of conductivity, TDS, and sulfate that have reasonable potential to cause or
contribute to an excess of narrative criteria. WVDEP concedes that it is impossible to
establish a numeric benchmark that will ensure the protection of the narrative criteria.
Although the EQB commanded WVDEP to establish effluent limits for conductivity, TDS,
and sulfate, they failed to explain through what CWA mechanism it was regulating these
parameters, mention WVSCI, or explain a basis which to proceed. Additionally, while the
EQB rejected Respondent's proposed effluent limits, they provided no clear guidance on
how to contrive these effluent limits.

As a result, Judge Stucky remanded the case to the EQB to more fully explain its decision:

This Court ORDERS the following. This case is REMANDED with the following
directions: the EQB shall provide written supplemental findings detailing a reasoned and
articulate decision in the Final Order. Additionally, these findings should include guidance to
calculate threshold values for regulating conductivity, TDS, and sulfate.

You can see the decision here. Thanks to Jennifer Hughes, who handled the appeal for the DEP, and who forwarded the decision.