A Kanawha County Circuit Court judge recently reversed an order by the Environmental Quality Board, saying the board should have given deference to the West Virginia Department of Environmental Protection's guidance of water quality standards.
The action originally was filed by the Sierra Club against Patriot Mining Co., Thomas L. Clarke, director of the Division of Mining and Reclamation and the West Virginia Department of Environmental Protection.
According to court documents, the Sierra Club appealed the petitioner's decision in September 2010 to approve a National Pollutant Discharge Elimination System permit.
These permits, called NPDES, monitor discharge pollutants pursuant to the Clean Water Act, court documents note.
The Environmental Quality Board held a three-day evidentiary hearing and issued its final order in March 2011, remanding the issue to the WVDEP to modify the permit.
The DEP and Patriot appealed to Kanawha County Circuit Court over conductivity, sulfates and total dissolved solids. In September 2011, the court remanded the board's order and said the board must file supplemental findings related to these issues.
According to court documents, the board then remanded the permit, which mandated the DEP to conduct an analysis and add enforceable effluent limits for conductivity, sulfate and total dissolved solids
The order also stated that the DEP should use the EPA's guidance.
The court found the board acted "arbitrary and capriciously by not giving deference to the DEP'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," the order states.
"This court finds that to apply EPA's narrative guidance would infringe on the authority afforded to WVDEP."
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