Kanawha judge reverses Sierra Club's win in challenge of mining permit

By John O'Brien | Mar 13, 2013

CHARLESTON – A Kanawha County judge has overturned a ruling by the state’s Environmental Quality Board that was in favor of the environmental group Sierra Club.

Judge James Stucky made his ruling Feb. 13 in a case involving a permit for a mine granted to Patriot Mining Company, a co-petitioner with the state Department of Environmental Protection. Sierra Club began its challenge of the permit on Sept. 3, 2010.

The EQB order told WVDEP to conduct a reasonable potential analysis for conductivity, sulfate and total dissolved solids in water around the mine site.

Stucky ruled the EQB should not have overturned the WVDEP decision to grant the permit.

“After a thorough review of the record, it is evident that the EQB accorded no deference to WVDEP’s interpretation of water quality standards,” Stucky wrote.

“In fact, the EQB orders that the EPA’s Narrative Guidance be followed, instead of using WVDEP’s Narrative Guidance.

“This court finds that to apply EPA’s Narrative Guidance would infringe on the authority afforded to WVDEP.”

Stucky wrote that the federal EPA provides states with instructions to help those who write permits conduct reasonable potential analyses.

WVDEP’s permit writers look at the concentrations of a pollutant in a stream that will receive a discharge, evaluate the likely pollution characteristics and calculate the probability that the discharge will cause the concentration of the pollutant in the stream to exceed a numeric water quality standard.

Stucky wrote that performing an analysis to protect narrative standards is more complex, and that narrative standards can vary widely from state to state.

The EPA has given state authorities, like the WVDEP, flexibility when conducting those analyses. The WVDEP uses the West Virginia Stream Condition Index to allow the narrative standards to be enforced.

WVSCI compares the number and types of aquatic insects in a stream with those that exist in undisturbed reference streams, Stucky wrote.

Robert G. McLusky, an attorney with Jackson Kelly, published a blog post on the decision. He says the pollution limits sought by the Sierra Club likely could have only been attained using reverse osmosis – an expensive technology.

McLusky said the EQB’s July decision that imposed numeric limits on conductivity, TDS and sulfate was inexplicable.

“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,” he wrote.

“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.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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