The West Virginia Supreme Court has affirmed a decision by the West Virginia Department of Environmental Protection (“DEP”) regarding interpretation of narrative water quality standards. The Supreme Court affirmed a lower court order that invalidated a decision by the West Virginia Environmental Quality Board (“EQB”) that imposed effluent limits in surface coal mine water discharge permits for parameters that do not have numeric water quality standards. As previously reported, the EQB twice ruled, at the urging of the Sierra Club, that the DEP must assign numeric effluent limits for total dissolved solids (“TDS”), conductivity, and sulfate for discharges from the defendant Patriot Mining Company’s mine, even though the West Virginia Legislature has not adopted water quality standards for these parameters. The Sierra Club argued that such effluent limits were necessary to protect the “narrative” water quality standards found in DEP regulations – i.e., to prevent “significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems[.]” The DEP did not include such limits in the permit. The Circuit Court of Kanawha County twice reversed the EQB, and the Supreme Court affirmed the most recent decision.

Dinsmore attorneys Christopher Power and Robert Stonestreet submitted an amicus curiae, or “friend on the court,” brief to the Supreme Court on behalf of the West Virginia Chamber of Commerce in support of the circuit court’s order. A copy of the Supreme Court’s opinion can be found here.

TDS is a measurement of the total amount of dissolved minerals in water, but not a measurement of any specific mineral. Conductivity is a measurement of how well the dissolved minerals in water conduct electricity. Conductivity levels depend on the type and amount of dissolved minerals, but like TDS, a conductivity measurement does not identify the particular minerals in the water. Sulfate is a mineral, and therefore its presence can contribute to both conductivity and TDS levels. Neither EPA nor any surrounding state has ever enacted numeric water quality standards for conductivity or sulfate, and the only TDS standards that have been implemented in any surrounding state have been limited in their application to waterways near public water supply intakes.

In upholding the circuit court order, the Supreme Court ruled that the EQB disregarded evidence demonstrating the absence of any consensus within the scientific community about the toxicity, if any, of TDS, conductivity, and sulfate at any specific level. The court observed that this lack of consensus essentially precluded the DEP from ascertaining what would constitute appropriate limits on these parameters to prevent “significant adverse impact” to the environment, and the EQB offered no explanation as to how the DEP was supposed to do so.

The Court did not address two of the primary issues presented (1) whether the EQB owes any deference to the DEP’s interpretation of the narrative water quality standards; and (2) whether the EQB may independently create effluent limits in water discharge permits for parameters that do not have numeric water quality standards. Therefore, the decision does not preclude the EQB, or the DEP for that matter, from imposing effluent limits for TDS, conductivity, or sulfate in the future if sufficient evidence is developed to establish levels at which those parameters cause “significant adverse impact” to the environment. As such, the Sierra Club and other groups are expected to continue their efforts to impose limits on these parameters through future challenges to permits. EPA is also reportedly continuing its efforts to arrive at some defensible rationale for imposing conductivity limits on industrial dischargers. The results of EPA’s study could lead to significant changes in how the DEP regulates water discharges.

Mine operators and other companies holding water discharge permits in West Virginia should consult with their legal counsel to determine how they can best prepare for future permit challenges.