Sierra Club v. Patriot Mining Co.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Sierra Club, FILED
Respondent Below, Petitioner May 30, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-0256 (Kanawha County 11-AA-102 and 11-AA-104) OF WEST VIRGINIA
Patriot Mining Company, Inc. and
Thomas L. Clarke, Director, Division
of Mining and Reclamation, West Virginia
Department of Environmental Protection,
Petitioners Below, Respondents
MEMORANDUM DECISION
Petitioner Sierra Club, by counsel Derek Teaney and Peter Morgan, appeals the order of
the Circuit Court of Kanawha County, entered February 13, 2013, reversing the decision of the
Environmental Quality Board (“EQB” or “the Board”). The Board’s decision remanded a permit
of Respondent Patriot Mining Company, Inc. (“Patriot”) to the West Virginia Department of
Environmental Protection (“WVDEP”) for the purpose of conducting an analysis of the
reasonable potential for a discharge to cause or contribute to an excursion of a water quality
standard and, where appropriate, set effluent limits. Respondent Patriot appears by counsel
Robert G. McLusky, James R. Snyder, M. Shane Harvey, and Aaron S. Heishman. Respondent
Thomas L. Clarke, director of the West Virginia Department of Environmental Protection
Division of Mining and Reclamation, appears by counsel Jason Wandling. The West Virginia
Chamber of Commerce has made an appearance as amicus curiae by counsel Christopher B.
Power and Robert M. Stonestreet.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
I.
In August of 2010, Patriot obtained, from the WVDEP, modification of a National
Pollutant Discharge Elimination System (“NPDES”) permit to expand its Monongalia County
surface mining activity with an operation called New Hill West Surface Mine.1 The modified
1
The New Hill West Surface Mine is a 150-acre expansion of respondent mining
company’s 75-acre New Hill Surface Mine. Respondent Patriot represents that the New Hill
1
permit addressed two new outlets (No. 26 and No. 27) and two existing outlets (No. 1 and No.
6), all of which discharge to either Scotts Run, a tributary of the Monongahela River, or an
unnamed tributary of Scotts Run. The permit specified maximum daily discharge limitations
with respect to iron and aluminum for each of the outlets, and also with respect to manganese for
Nos. 6, 26, and 27. It required that, for each of the four outlets, Patriot make quarterly reports
with respect to the discharge of certain other materials, but did not set effluent limitations2 for
most of those materials. Limits were established for pH, total suspended solids, and settleable
solids. Relevant to this appeal, only reporting was required for sulfate, specific conductance, and
total dissolved solids (“TDS”)3.
Surface Mine operation has been successfully mined and reclaimed, and that it still discharges
water from the site pursuant to its NPDES permit, which allowed respondent to discharge rainfall
runoff after passing the runoff through sediment control ponds or pumps. Respondent represents
that land within this operation, including its expanded area, has “legacy pollution issues” that
predate state and federal surface mining laws, but that its activities have improved area water
quality through isolation of refuse material that causes acid mine drainage.
2
Effluent limitations are “restriction[s] established by a State or the Administrator on
quantities, rates, and concentrations of chemical, physical, biological, and other constituents
which are discharged from point sources into navigable waters.” 33 U.S.C. § 1362(11). They are
required in permits for pollutants that “are or may be discharged at a level [that] will cause, have
the reasonable potential to cause, or contribute to an excursion above any State water quality
standard, including State narrative criteria for water quality.” 40 C.F.R. § 122.44(d)(1)(i). A
permit writer may establish effluent limitations on a case-by-case basis (if the state has not
already adopted specific limitations) after conducting a “reasonable potential analysis” to
determine whether a reasonable potential exists for discharge containing a particular pollutant
that would violate water quality standards. The circuit court explained that permit writers
conducting reasonable potential analyses “look at the concentrations of pollutants in the stream
that will receive the discharge. Next, the permit writers evaluate the observed or likely pollution
characteristics of the effluent discharge, then calculate the probability that the effluent discharge
will cause the concentration of the pollutant in the receiving stream to exceed the numeric water
quality standard for that pollutant.” Final Order at 6. However, this is the process applied when
numeric water quality standards are at risk. The parties have presented no explanation of the
process for conducting a reasonable potential analysis to evaluate compliance with narrative
water quality standards.
3
According to the EQB, specific conductance, or conductivity, is the measure of the
presence of sulfates and other ions in discharges or receiving streams. EQB Supplemental Final
Order at 9. Patriot explains that TDS is a measure of the weight of the ions dissolved in water.
Resp. Brief at 4. Petitioner argued before the EQB that conductivity should be limited to 300
microsiemens/cm and TDS to 50 milligrams/L to protect the watershed and thus meet West
Virginia’s narrative water quality standards. (The EPA guidance, described in the body of this
decision, sets a numeric limit on conductivity at 500 microsiemens/cm; however, the United
States District Court for the District of Columbia found that this standard “removes the
reasonable potential analysis from the realm of state regulators.” National Mining Association v.
Jackson, 880 F. Supp. 2d 119, 141 (D.C. Cir. 2012).) Patriot argues that these limits proposed by
2
Prior to the modification of the permit, on April 1, 2010, the United States Environmental
Protection Agency had issued a narrative guidance, “Improving EPA Review of Appalachian
Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy
Act, and the Environmental Justice Executive Order” (“EPA guidance”). The EPA guidance,
citing federal regulations, notes that the Clean Water Act “requires NPDES permits to contain
water quality-based effluent limitations when necessary to meet water quality standards” and
explains that the permitting authority must conduct a “reasonable potential analysis” to
determine whether the limits are necessary.4 Three days after the permit was issued, the WVDEP
issued its own “Permitting Guidance for Surface Coal Mining Operations to Protect West
Virginia’s Narrative Water Quality Standards” (“WVDEP guidance”) and its “Justification and
Background for Permitting Guidance.” The WVDEP guidance required that if the WVDEP
concluded that an outlet had a reasonable potential to cause or contribute to an “excursion” from
the narrative water quality criteria, the permit should include whole effluent toxicity (“WET”)5
limitations. In cases of insufficient data, however, the WVDEP Guidance directs that a permit
include monitoring requirements and triggers to determine whether such reasonable potential
exists.6 Once the monitoring shows reasonable potential, the permit is to be reopened for the
inclusion of WET limits. This guidance, described as “dynamic,” was effective upon issue.
Before Patriot began mining the expansion, petitioner appealed the permit modification to
the EQB, which allowed Patriot to intervene in the appeal. The EQB then conducted a four-day
hearing in December of 2010 and entered a final order finding that petitioner demonstrated that
the watershed’s levels of sulfate, conductivity, and TDS were above limits known to cause harm
to aquatic life, thereby violating West Virginia’s narrative water quality standards, and that
studies show that these increased levels are due to elevated concentrations of sulfate, calcium,
magnesium, and bicarbonate ions. The EQB remanded the permit modification to the WVDEP to
conduct the appropriate analyses for conductivity, sulfate, TDS, and arsenic, and to include
petitioner would require the implication of expensive reverse-osmosis technology. We need not
consider the proposed limitations or the potential costs for the purposes of this appeal.
4
The EPA guidance also notes that most Appalachian states have narrative standards, but
EPA regulations require the NPDES permits must contain provisions that implement both
narrative and numeric water quality standards.
5
According to the United States Environmental Protection Agency, “[w]hole effluent
toxicity refers to the aggregate toxic effect to aquatic organisms from all pollutants contained in
a facility’s wastewater. . . . WET tests measure wastewater’s effects on specific test organisms’
ability to survive, grow and reproduce.”
http://water.epa.gov/scitech/methods/cwa/wet/index.cfm.
6
The WVDEP guidance also provides, “If the applicant cannot demonstrate, by means of
its chemical and biological monitoring and the control measures outlined in its [aquatic
ecosystem protection plans], that it does not have [reasonable potential], the permit writer should
treat new and expanded mining discharges as if they have [reasonable potential] and include
WET limits in the permit. . . .”
3
appropriate effluent limitations. The order noted that the parties agreed a limit should have been
included for manganese at Outlet No. 1, and that appropriate limits should be set for arsenic and
selenium. Respondents appealed that decision to the circuit court with respect to the EQB’s
findings related to sulfate, conductivity, and TDS.
The circuit court entered an order on September 25, 2012, remanding to the EQB on the
ground that the EQB should provide a more detailed explanation of its methodology, and that it
had “failed to set forth a reasoned and articulate decision that can be subject to effective judicial
review.” The court directed the EQB to “include guidance to calculate threshold values for
regulating conductivity, TDS, and sulfate.” The EQB entered a supplemental final order on July
30, 2012, which included its original order and additional findings and conclusions, and also
“directe[d] the WVDEP [to] use the EPA guidance7, coupled with Dr. [Paul] Ziemkiewicz’s
calculated yields of solids, sulfate, and conductivity on the New West Hill site as a roadmap
toward setting effective conductivity limits on the New West Hill permit.”8
The circuit court entered its final order on February 12, 2013, and concluded:
After a thorough review of the record, it is evident that the EQB accorded no
deference to WVDEP’s interpretation of water quality standards. In fact, the EQB
orders that the EPA’s Narrative Guidance be followed, instead of using
WVDEP’s Narrative Guidance. This [c]ourt finds that to apply EPA’s Narrative
Guidance would infringe on the authority afforded to WVDEP. Therefore, the
[c]ourt concludes that the EQB’s decision was arbitrary and capricious.
7
Respondent Clarke argues that the EPA Guidance was merely an interim guidance,
replaced by a final guidance on July 22, 2011, and later vacated by a federal district court on July
31, 2011. See National Mining Association v. Jackson, 880 F. Supp. 2d 119 125 (D.D.C. 2012).
He argues that the EQB did not sufficiently clarify whether it was directing the WVDEP to use
the interim guidance or the final guidance, but that the direction was inappropriate in either case.
We find that the “direction” to use the guidance was merely a suggestion meant to clarify the
earlier order upon the circuit court’s order requiring detailed methodology, and we thus find it
unnecessary to consider the validity of either the EPA’s interim or final guidance. In any event,
we find neither the EPA guidance, nor the WVDEP guidance (published after the issuance of the
permit that is the subject of this action) controlling. While we do not accept the WVDEP
guidance as prevailing policy at the time of the modification of the permit for the New Hill West
Surface Mine, we are mindful of the contents for evidentiary purposes, insofar as it purports to
be the culmination of WVDEP’s study of “subject matter uniquely within [WV]DEP’s expertise
and special knowledge” and its efforts to “facilitate compliance with applicable statutory and
regulatory requirements and to provide reasonable means of effectuating the intent of the
narrative criteria. . . .”
8
Dr. Ziemkiewicz testified at the EQB hearing. However, the transcript excerpts of his
testimony contained in the appendix do not include information about his credentials.
4
Petitioner appeals the circuit court’s order to this court. In the case sub judice, the circuit
court reversed an order of the Environmental Quality Board. Our review of the circuit court’s
decision in an administrative appeal is de novo. See Tennant v. Callaghan, 200 W.Va. 756, 761,
490 S.E.2d 845, 850 (1997). In conducting that review, however, we are subject to the same
governing standards of review that controlled the circuit court’s actions. West Virginia DEP v.
Kingwood Coal Co., 200 W.Va. 734, 736, 490 S.E.2d 823, 825 (1997). Those standards are
contained in Syllabus Point 2 of Shepherdstown Volunteer Fire Department v. State ex rel. State
of West Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342 (1983):
Upon judicial review of a contested case under the West Virginia
Administrative Procedure[s] Act, Chapter 29A, Article 5, Section 4(g), the circuit
court may affirm the order or decision of the agency or remand the case for
further proceedings. The circuit court shall reverse, vacate or modify the order or
decision of the agency if the substantial rights of the petitioner or petitioners have
been prejudiced because the administrative findings, inferences, conclusions,
decisions or order are “(1) In violation of constitutional or statutory provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made
upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly
wrong in view of the reliable, probative and substantial evidence on the whole
record; or (6) Arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion.”
With these standards in mind, we review petitioner’s three assignments of error: first, that
the circuit court erred in concluding that the decision of the EQB was arbitrary and capricious
because the court erroneously determined that the EQB had to defer to WVDEP’s interpretation
of water quality standards; second, that the circuit court disregarded the EQB’s findings of fact,
which were issued subsequent to a four-day hearing; and finally, that the circuit court erred in
reversing the final order and supplemental order of the EQB, when the appropriate remedy
would have been remand.
II.
Petitioner’s assignments of error are procedural in nature, requiring awareness of the
administrative structure of the state agencies here involved and, to some degree, the interplay
between our own Water Pollution Control Act, West Virginia Code § 22-11-1 et seq., and federal
law. The NPDES permit system (pursuant to which respondent mining company’s permit was
issued) is created by Section 402 of the Federal Water Pollution Control Act, also known as the
Clean Water Act. 33 U.S.C. 1342. The Clean Water Act serves to “restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.” PUD No. 1 of Jefferson
County v. Wash. Dept. of Ecology, 511 U.S. 700, 704, 114 S. Ct. 1900, 128 L. Ed. 2d 716
(1994)(quoting 33 U.S.C. § 1251(a)). To that end, it uses two approaches to control water
pollution: (1) technology-based regulations; and (2) water quality standards. Arcadia v. United
States EPA, 265 F. Supp. 2d 1142, 1143 (2003). “Technology-based regulations seek to reduce
pollution by requiring a discharger to effectuate equipment or process changes, without reference
to the effect on the receiving water; water quality standards fix the permissible level of pollution
in a specific body of water regardless of the source of pollution.” Id. at 1143–44.
5
In short,
the Clean Water Act provides for two sets of water quality measures. First, the
EPA establishes and enforces limitations on discharges from point sources. To
discharge, an individual must obtain a permit from the EPA or an EPA-authorized
state agency. Second, states must promulgate water quality standards for intrastate
waters. These standards must have three elements: (1) states must give each body
of water a “designated use”; (2) states must specify for each body of water the
amounts of various pollutants or pollutant parameters that may be present without
impairing the designated use; and (3) states must adopt a nondegradation policy
which allows the state to assess activities that may lower the quality of the water
body.
Pennaco Energy, Inc. v. United States Environmental Protection Agency, 692 F. Supp. 2d 1297,
1302 (D. Wyo. 2009).
States may apply for delegated authority to implement NPDES permitting and, if the
United States Environmental Protection Agency approves, the state receives delegated authority
over the program. Jackson, 880 F. Supp. 2d at 125. West Virginia has been granted such authority.
Id. at n.5. Our legislature has given the Secretary of the West Virginia Department of
Environmental Protection the authority “[t]o perform any and all acts necessary to carry out the
purposes and requirements of [the state Water Pollution Control Act] and of the ‘Federal Water
Pollution Control Act’ . . . relating to this state’s participation in the ‘National Pollutant
Discharge Elimination System’ . . . established under that act. . . .” W.Va. Code § 22-11-4(a)(1)
(2009).
In accordance with Section 301 of the [Clean Water Act], 33 U.S.C. §
1313, NPDES permits “typically contain numerical limits called ‘effluent
limitations’ that restrict the amounts of specified pollutants that may be
discharged.” Defs.’ Mem. at 9. “Water quality based effluent limitations are
required for all pollutants that the permitting authority determines ‘are or may be
discharged at a level [that] will cause, have the reasonable potential to cause, or
contribute to an excursion above any [applicable] water quality standard,
including state narrative criteria for water quality.’” Id. (quoting 40 C.F.R. §
122.44(d)(1)(i)). Accordingly, the procedure for determining the need for effluent
limits is called a reasonable potential analysis. If the discharge does have the
reasonable potential to cause an excursion above a numeric or narrative water
quality standard set in accordance with Section 303 of the [Clean Water Act], the
state must develop permit limitations to ensure compliance with that water quality
standard. See Am. Paper Inst. v. EPA, 996 F.2d 346, 349 (D.C.Cir.1993). . . . To
achieve this compliance, the states may establish either numeric or narrative
permit limits. See id. (noting that criteria come in “two varieties: specific numeric
limitations on the concentration of a specific pollutant in the water ... or more
general narrative statements applicable to a wide set of pollutants”).
6
Jackson, 880 F. Supp. 2d at 126. West Virginia has articulated narrative water quality standards
that are violated if wastes discharged from a surface mining operation “cause . . . or materially
contribute to” (1) “[m]aterials in concentrations which are harmful, hazardous or toxic to man,
animal or aquatic life” or (2) a “significant adverse impact to the chemical, physical, hydrologic,
or biological components of aquatic ecosystems.”9 W.Va. Code R. §47–2–3.2.e, –3.2.i. As noted
in Jackson, though water quality standards are developed by the states, the federal
Environmental Protection Agency must review the standards for approval. See 33 U.S.C. §
1313(c). “The EPA may assume the role of actually promulgating water quality standards only if
(1) it determines that a state’s proposed new or revised standard does not measure up to the
Clean Water Act’s requirements and the state refuses to accept EPA-proposed revisions, or (2) a
state does not act, and the EPA determines that a new or revised standard is necessary.” Jackson,
880 F. Supp. 2d at 127.
While the WVDEP has been granted the authority to develop these standards on behalf of
this State, its permitting actions are reviewable. The EQB, formerly known as the Water
Resources Board, was continued by the state legislature in 1994.10 W.Va. Code § 22B-3-1
(2010). West Virginia Code § 22-11-21 provides:
Any person adversely affected by an order made and entered by the
[Director of the Department of Environmental Protection] in accordance with the
provisions of [the Water Pollution Control Act, West Virginia Code § 22-11-1, et
seq.], or aggrieved by failure or refusal of the [Chief of the Office of Water
Resources of the Department of Environmental Protection] to act within the
specified time as provided in subsection (e) of section eleven [§ 22-11-11(e)] of
this article on an application for a permit or aggrieved by the terms and conditions
of a permit granted under the provisions of this article, may appeal to the
environmental quality board, pursuant to the provisions of article one, chapter
twenty-two-b [§§ 22B-1-1 et seq.] of this code.
9
Neither the WVDEP nor the EPA has implemented regulations establishing numeric
standards for sulfate, TDS, or conductivity.
10
Respondent Patriot challenges the credentials of the Board, characterizing its
composition as “part-time political appointees.” The EQB is composed of five members
appointed by the governor with the advice and consent of the Senate. W.Va. Code § 22B-3-1(b).
In its final order issued in this case, the EQB described the qualifications of its current members:
Dr. Ed Snyder, who holds a Ph.D. in geology, is a professor at Shepherd University; Dr. Scott
Simonton, who holds a Ph.D. in engineering, is a former WVDEP permit writer and currently
teaches environmental sciences at Marshall University; Dr. James van Gundy, who holds a Ph.D.
in aquatic ecology, is an emeritus professor of environmental sciences at Davis & Elkins
College; William Gillespie, described as an expert in paleobotany, geology, and forestry, is a
former professor of geography and geology at West Virginia University; and Ted Armbrecht,
former chief executive officer of Stone & Thomas Department Store, is a Mountain Institute
board member and a member of the Nature Conservancy.
7
III.
Petitioner’s first assignment of error on appeal is that the circuit court erroneously
concluded that the EQB was required to defer to the WVDEP’s interpretation of water quality
standards. We disagree with the circuit court and the parties that this case involves a question of
deference to the WVDEP’s authority, because there is no evidence in the appendix record on
appeal that, at the time it approved modification of the permit, the WVDEP had developed
relevant formal policies to which the EQB was required to defer.11 In fact, Patriot clarifies in its
brief that “there had been no previous efforts by WVDEP to explain how these [narrative water
quality] standards can be interpreted or practically implemented before WVDEP released its
[n]arrative [g]uidance documents.” Rather, the issue appears to be a question of whether the
EQB had a sufficient basis for remanding the permit to the WVDEP with the requirement that
the WVDEP conduct reasonable potential analyses12 and set effluent limitations for sulfate,
conductivity, and TDS to meet State narrative water quality standards13.
11
The guidance that respondents suggest embody the WVDEP interpretation did not exist
at the time this New Hill West Surface Mine permit was modified, and we are loath to charge the
Board with lacking deference under these circumstances. The water quality standards
promulgated by WVDEP require, in part, that the agency address “[m]aterials in concentrations
which are harmful . . . to . . . aquatic life.” It is not apparent that the EQB attempted to alter this
standard but it instead found, based on the evidence presented at the hearing, that the permit did
not contain sufficient effluent limitations to ensure that aquatic life was protected, and thus
achieve the existing water quality standard. Though we find that the EQB’s order and
supplemental order are not supported by the evidence, we do not herein consider whether the
EQB exceeded its authority in the manner of review.
12
Respondent states that the “EPA has developed comprehensive instructions to help
permit writers conduct reasonable potential analyses for compliance with numeric water
standards.” Unfortunately, the technical support document that it references in support of this
statement was not included in the appendix record on appeal. Neither party has suggested,
however, that the EPA has developed such comprehensive instructions for compliance with
narrative standards. We are left with little or no insight into the methodology required to conduct
a reasonable potential analysis, and it is therefore not clear how petitioner asserts that the
WVDEP’s actions were deficient.
13
One federal district court has explained the difficulty that states have faced with respect
to enforcing narrative water quality standards:
Of course, the water quality standards by themselves have no effect on pollution;
the rubber hits the road when the state-created standards are used as the basis for
specific effluent limitations in NPDES permits. . . . When the standard includes
numeric criteria, the process is fairly straightforward: the permit merely adopts a
limitation on a point source’s effluent discharge necessary to keep the
concentration of a pollutant in a waterway at or below the numeric benchmark.
Narrative criteria, however, present more difficult problems: How is a state or
federal NPDES permit writer to divine what limitations on effluent discharges are
8
The WVDEP guidance justification and background paper concluded that because
“conductivity represents the combined concentrations of all different dissolved ions, each with
potential varying toxic effects, regulation solely via an indicator such as specific conductance is
not the best way to protect against excursions from narrative standards.”14 Furthermore, at the
hearing, WVDEP’s NPDES program manager Jeffrey Parsons testified that it was not possible to
conduct reasonable potential analyses for conductivity or sulfate because there is no consensus
about toxicity levels for these measures.15 Though the EQB relied on evidence suggesting that
necessary to assure that the waterway contains, for example, “no toxics in toxic
amounts”? Faced with this conundrum, some permit writers threw up their hands
and, contrary to the Act, simply ignored water quality standards including
narrative criteria altogether when deciding upon permit limitations. See Natural
Resources Defense Council v. EPA, 915 F.2d 1314, 1317 (9th Cir.1990).
Additionally, when standards containing narrative criteria were enforced—often
through the device of whole effluent discharge limitations based on biological
monitoring techniques, see 48 Fed.Reg. 51,400, 51,402 (1983) (noting that
biological monitoring is one method of testing compliance with narrative
criteria)—the lack of standardized procedures made it impossible to even
approximate consistency in the translation of criteria into permit limitations. Cf.
57 Fed.Reg. 60,848, 60,851 (1992). Moreover, the biological monitoring
techniques relied on to enforce narrative criteria were better suited to assuring
protection of aquatic life than human health. See 131 CONG.REC. 15,324 (1985)
(Statement of Senator Stafford). Thus, in the EPA’s view, the lack of a required
procedure for developing water-quality-based permit limits from narrative criteria
hamstrung attempts to fulfill the statutory requirement that NPDES permits
contain limitations necessary to meet all water quality standards. See 54 Fed.Reg.
23,868, 23,877 (1989) (noting that the EPA’s legal obligation to assure that
NPDES permits meet all applicable water quality standards could not be set aside
until states promulgate numeric water quality criteria for all their standards).
American Paper Institute, Inc. v. U.S.E.P.A., 996 F.2d 346, 350 (D.C. Cir. 1993).
14
Explaining its use of the West Virginia Stream Condition Index (“WVSCI”) scores for
the purpose of evaluating the health of aquatic ecosystems, the WVDEP wrote:
. . .[WV]DEP’s data shows that more than a simple conductivity
measurement is necessary to determine the health of a stream. As proof that a
number for specific conductance is an inappropriate gauge, . . . a stream can have
a low level of specific conductance and a WVSCI score that indicates the stream
is firmly within the range for impairment; conversely, a stream can have a high
level of specific conductance and a WVSCI score that indicates the stream is
above the threshold for impairment.
15
Because there is no evidence before us regarding the methodology behind reasonable
potential analyses with regard to narrative standards, we easily envision a method under which
some monitoring (as the WVDEP included in the New Hill West Surface Mine modified permit)
9
conductivity levels should remain below 500 microsiemens/cm to protect the mayfly population,
and ultimately the stream function, for example, we are not persuaded by the evidence of record
that there is adequate agreement in the scientific community to trigger the WVDEP to conduct a
reasonable potential analysis regarding sulfate, conductivity, or TDS under these circumstances.
Contrary to petitioner’s argument in its second assignment of error, in which it states that the
circuit court ignored the EQB’s findings of fact, we find that the EQB order and supplemental
order failed to address its disregard of this meaningful evidence presented by respondents. We
thus find that the circuit court could have determined that the EQB erred under the standards set
forth in Syllabus Point 2 of Shepherdstown Volunteer Fire Department, 172 W.Va. 627, 309
S.E.2d 342, particularly in light of the arbitrary nature of the EQB order, which offered no
discussion about the relationship between reasonable probability analyses and narrative water
quality standards. Accordingly, we reject petitioner’s first and second assignments of error.
Finally, petitioner argues that, if the circuit court’s decision on the merits were correct,
the proper remedy would have been remand to the EQB because the circuit court effectively
reversed unchallenged EQB determinations in the administrative appeal. Petitioner argues that
Patriot did not appeal the EQB’s instructions with respect to arsenic, manganese, selenium, and
WET limits. Patriot counters that it did, in fact, appeal the imposition of WET limits to the
circuit court on April 25, 2011, and again on August 30, 2012. We accept this as true because
petitioner did not dispute the assertion on reply.16 Respondent did not, however, appeal the
EQB’s order to the circuit court insofar as the EQB remanded the permit to require the WVDEP
to conduct reasonable potential analyses for arsenic and to include appropriate limitations for
manganese and selenium. Nevertheless, remand is not necessary. These issues are not so
intertwined that this Court is unable to exercise its inherent authority and fashion appropriate
relief.
For the foregoing reasons, we affirm the final order of the circuit court insofar as it
reversed the portions of the final and supplemental orders of the EQB that would have required
would be predicate to an analysis. Even the circuit court explained that, at least where numeric
standards are involved, permit writers must “evaluate the observed or likely pollution
characteristics of the effluent discharge. . . .” EPA regulations suggest that some monitoring is
necessary, as well. A permitting authority “shall use procedures which account for existing
controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant
parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole
effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water” when
it determines whether a pollutant discharge has the reasonable potential to cause an excursion
above a water quality standard. 40 C.F.R. at § 122.44(d)(1)(ii)(emphasis supplied).
16
Patriot references its petitions for appeal to the circuit court in support of the assertion
that it appealed the EQB order insofar as it directed the WVDEP to include WET limits in the
permit. Neither petition is included in the appendix record on appeal, and no supplemental
appendix has been offered. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure
requires that arguments “contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal.”
10
the WVDEP to conduct reasonable potential analyses and thereafter include specific effluent
limitations with regard to sulfate, conductivity, and TDS in the modified permit. To the extent
that the final order purports to reverse the EQB’s ruling on those matters not raised on appeal to
the circuit court, that order is vacated.
Affirmed in part, vacated in part.
ISSUED: May 30, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Justice Brent D. Benjamin
Justice Margaret L. Workman
11