Nearly three years ago, the Sierra Club commenced an administrative appeal of a WV/NPDES water discharge permit issued by the West Virginia Department of Environmental Protection (“WVDEP”) for a mining operation in Monongalia County, West Virginia. The operator needed the permit to move into the next phase of mining and allow its workforce to keep their jobs.

Even though neither the EPA nor the WVDEP has ever developed water quality standards for conductivity, total dissolved solids (“TDS”), or sulfates, the Sierra Club argued in its appeal that the WVDEP should have assigned effluent limits in the permit for those parameters at levels suggested by the Sierra Club’s witnesses. The Sierra Club argued that such effluent limits were necessary to protect the “narrative” water quality standards found in WVDEP regulations – i.e., to prevent “significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems[.]” W. Va. C.S.R. § 47-2-3.2.i.

The WVDEP pointed out that it had developed a detailed permitting policy specifically for the protection of the narrative standards that is far more comprehensive than broad application of effluent limits for these parameters (which have not been shown to consistently or uniformly cause harm to aquatic ecosystems). Nevertheless, the West Virginia Environmental Quality Board (“EQB”) ruled in the Sierra Club’s favor, issued a stay of the effectiveness of the permit, and ordered the WVDEP to impose such limits in the permit. Both the WVDEP and the operator appealed.

The Circuit Court of Kanawha County (Judge Stucky) properly reversed the EQB’s decision. Judge Stucky ruled that the EQB had failed to afford any deference to WVDEP’s interpretation of the narrative water quality standards. The Sierra Club has appealed Judge Stucky’s decision to the West Virginia Supreme Court of Appeals, and that appeal is now pending.

Whichever way the Supreme Court rules, the decision will have a significant impact on the environmental regulation of the State’s waterways -- for coal producers, other natural resource companies, manufacturers, and virtually any industry that engages in activity that requires issuance of a WV/NPDES permit. Because of the great significance of the issue to current and future businesses in our State, the West Virginia Chamber of Commerce retained Dinsmore attorneys Christopher Power and Robert Stonestreet to prepare an amicus curiae, or “friend of the court,” brief for filing with the Supreme Court in support of the WVDEP and the operator as they defend Judge Stucky’s ruling. A motion seeking leave to file the brief and the brief itself were filed on Monday, July 29, 2013. A copy of the brief may be obtained by clicking here.