EQB Mandates Numeric Limits in Mining Permit To Protect Narrative Water Quality Criteria

On March 25, 2011 The West Virginia Environmental Quality Board issued a final order addressing many issues raised by environmental groups who had challenged a NPDES permit issued to Patriot Coal. The initial decision (which I did not locate on the EQB's web site)  remanded the permit to the DEP to take further action.  The DEP and the coal company, which had intervened, appealed that portion of the decision that required the DEP to do a reasonable potential analysis for conductivity, sulfates and total dissolved solids (TDS) .  The Circuit Court ordered the EQB to file supplemental findings of fact and conclusions of law that support its decision with regard to conductivity, sulfates and TDS.

There are no numeric water quality criteria for conductivity, sulfates, or TDS.  On remand, the environmentalists argued, and a majority of the Board agreed, that numeric limits are required in Patriot's permit in order to implement West Virginia's  narrative water quality standards at 47 CSR 2-3. Among other things, the narrative standard generally prohibits discharges that contain "materials which are harmful . . . to . . . aquatic life. "  The Board  concluded that the levels of conductivity, sulfates and TDS draining from Patriot's point sources adversely affected mayflies and other biota, and therefore permit limits must be set which would prevent such  damage.

The Board's July 30, 2012 supplemental  decision is required reading for anyone involved in NPDES permitting, because it demonstrates how the  EQB may require numeric permit limits for  substances or conditions that have no numeric water quality criteria.  I don't know whether the DEP and/or Patriot will appeal; they have very able counsel who are no doubt weighing their chances, as well as the fact that Patriot is in bankruptcy right now.

There were a couple aspects of the decision that interested me, beyond the decision itself. One was that the Board split 3-2, with Drs. Gilllespie and Blake opposing the Board's action.  Ordinarily the Board issues unanimous decisions, and this suggests that the recent addition of Dr. Blake to the Board may mean that we will see dissenting opinions in the future. The other is that the Board remanded the permit to the DEP to modify the permit.  Although this has frequently been done by the Board, it does not have that power. Under W. Va. Code 22B-1-7(g), the Board can  affirm, modify or vacate the order, or make such order as the DEP should have made, or approve or modify the terms of any permit.  It has no authority to remand the permit with instructions. A similar remand was challenged by the Division of Air Quality in an appeal of the AQB's decision in the TransGas case.  The Circuit Court of Kanawha County has not ruled on that, yet.