Environmental Groups Ask EPA to Take Over WV Pollution Permitting

by Ken Ward Jr., excerpted from June 17, 2009, Coal Tattoo blog

A few weeks ago, when he went off on EPA, West Virginia Environmental Protection Secretary Randy Huffman said this: "We are the environmental regulators here in West Virginia. We are the ones on the front line here. We are the ones responsible for protecting the environment. We have a very rigorous and robust regulatory program that is basically being challenged."

Well … we may find out now if the Obama administration thinks Randy’s right. Because this morning, a coalition of environmental groups filed a formal petition that demands the U.S. Environmental Protection Agency take over administration of the Clean Water Act’s water pollution permitting and enforcement program (the National Pollution Discharge Elimination System, or NPDES) from the WV Department of Environmental Protection.

The petition alleges a "complete breakdown of West Virginia’s maintenance and enforcement of its NPDES program," and goes on to say: "The state’s capitulation to the industries it is obligated to regulate under the Clean Water Act and its resulting failure to enforce or maintain its NPDES program leave EPA no choice but to withdraw its approval of that program."

The petition says that WVDEP’s failures are "greatly harming the state" and have led to the impairment of more than one-third of its rivers, streams and lakes. Examples of the impairment (many related to coal mining or the burning of coal) include: 5,153 miles of biologically impaired waterways; 3,958 miles of waterways with iron violations; 1,376 miles of waterways with pH problems; 937 miles with aluminum exceedences; 669 miles with mercury problems; and 160 miles with too much selenium.

The petition to EPA was filed by the Sierra Club, the West Virginia Highlands Conservancy, Coal River Mountain Watch and the Ohio Valley Environmental Coalition.

The groups are represented by lawyers Joe Lovett and Derek Teaney from the Appalachian Center for the Economy and the Environment, and by Aaron Isherwood from the Sierra Club’s Environmental Law Program. The petition was also researched and written by Margaret Janes from the Appalachian Center.

The 26-page document outlines a variety of long-standing problems with the state’s water pollution regulatory program, as well as some more recent developments:

N During the 2009 session, West Virginia lawmakers passed a bill that gives coal operators yet another three years to come into compliance with a water pollution limit for selenium that’s been on the books for years.

N WVDEP has refused to obtain permits and set permit limits for abandoned mine sites where it treats water pollution discharges, a move that means the treatment isn’t always up to standards and a practice that has been condemned by a federal judge.

N Agency officials for years ignored water pollution permit violations by coal companies, until EPA came in and did its own enforcement case against Massey Energy. And now, WVDEP’s response has been to enter into a series of "egregious and inadequate" settlements with other mining companies, to avoid similar EPA lawsuits or citizen legal actions.

The petition also targets failings of the state Environmental Quality Board, which takes part in the NPDES program by hearing appeals and deciding legal disputes regarding water pollution permits and enforcement actions. Citizen groups say that the EQB has violated EPA rules by interpreting state laws to allow WVDEP permit writers to consider "the economic feasibility of compliance."

Under the law, EPA is obligated to respond in some manner … so stay tuned. (Ed. Note: follow developments at blogs.wvgazette.com/coaltattoo/).