By John McFerrin

The West Virginia Highlands Conservancy, Sierra Club, Coal River Mountain Watch, and Ohio Valley Environmental Coalition have petitioned the federal Environmental Protection Agency for withdrawal of the National Pollutant Discharge Elimination System program delegation from the State of West Virginia. Pointing to the systemic failure of West Virginia to administer and enforce the National Pollutant Discharge Elimination System (NPDES) program, the groups asked that West Virginia’s authority to do so be withdrawn.

Passed by a strong majority in Congress during the Nixon administration, the federal Clean Water Act is designed to regulate (and eventually eliminate) the discharge of pollution into the nation’s waters. Under the terms of that Act, states may request that they be allowed to administer and enforce their own National Pollutant Discharge Elimination System (NPDES) program. West Virginia made such a request many years ago and has administered its own NPDES program ever since.

The petition seeks to change that. It asserts that West Virginia has made such a mess of its NPDES program that the United States Environmental Protection Agency should step in and withdraw approval of West Virginia’s National Pollutant Discharge Elimination System (NPDES). If the Environmental Protection Agency does withdraw approval, it would assume administration and enforcement of the program.

In their petition, the petitioners describe the situation this way: “The West Virginia Department of Environmental Protection’s abdication of its duties to regulate water pollution requires swift action by EPA to protect West Virginia’s citizens and environment. 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 points to the impairment of over 33% of West Virginia’s rivers, streams, and lakes. Causes of impairment include biological impairment (5,153 miles), iron (3,958 miles) pH (1,376 miles), aluminum (937 miles), mercury (669 miles), and selenium (160 miles). The impairments are, in large part, the result of the deficiencies of West Virginia’s administration of its NPDES program.

Many of the deficiencies are coal related. The petition points to the complete failure to effectively regulate or control selenium discharges from mine sites. The West Virginia Department of Environmental Protection’s preference is for a leisurely study of the problem instead of actually doing something about it.

The petition also points to problems at mine sites where a performance bond has been forfeited. At these sites, a mining company has failed to complete reclamation and the Department of Environmental Protection has forfeited the performance bond and assumed responsibility for the reclamation. In spite of being ordered to do so, (See Judge Holds West Virginia Department of Environmental Protection’s Feet to the Fire in the February, 2009, issue of The Highlands Voice), the West Virginia DEP has refused to issue NPDES permits for those forfeited sites and make them part of the NPDES regulatory program.

There is a similar problem with abandoned mine lands sites. These are sites which existed before the Surface Mining Act passed in 1977 but were never properly reclaimed. Those sites are gradually being reclaimed through a West Virginia DEP program. Like the forfeited sites, the West Virginia DEP has refused to issue NPDES permits for those sites and make them part of the NPDES regulatory program.

The petition also faults West Virginia for allowing companies to avoid strict pollution control requirements if complying with those requirements would be expensive.

The petition points to what appears a general policy of not enforcing existing standards. It quotes a Department of Environmental Protection lawyer’s explanation of why the agency could not deny permit renewals for companies with uncorrected wayer pollution violations: “if [DEP] did not renew permits for companies with outstanding water pollution violations, no mining permits would ever be renewed. ‘Taken to its logical conclusion, that would mean no one gets renewal . . . We’ll just shut down mining.’”

As further indication of DEP’s super-lenient enforcement policy, the petitioners point to a recent settlement of an enforcement action brought by the United States Environmental Protection Agency against Massey Energy Company. This enforcement action resulted in a agreement to pay a $20 million civil penalty in a corporate-wide settlement to resolve Clean Water Act violations at coal mines in West Virginia and Kentucky. This was the largest civil penalty in EPA’s history levied against a company for wastewater discharge permit violations. West Virginia did not participate in that enforcement action.

The United States EPA does not take enforcement actions if a state is already doing so. Since the Massey enforcement case, dischargers have flocked to the West Virginia DEP to negotiate settlements of their violations. Negotiating and settling with West Virginia is a tool to protect the companies from EPA which, unlike West Virginia DEP, might pursue serious enforcement action.

The deficiencies in West Virginia’s administration of the NPDES program are not limited to coal. It also points to a systemic failure by West Virginia in providing public notice of agency actions, particularly in major modifications to permits and in changes in water quality standards.

The petitioners also point to weak enforcement at PPG Industries, Inc. Chronic violations (approximately 52 in the year and a half period that the petitioners reviewed) of discharge standards for such things as copper, aluminum, iron, and mercury led to no enforcement actions until citizens threatened to begin their own enforcement action under the citizen’s suit provision of the Clean Water Act. Although the West Virginia Department of Environmental Protection action prevents citizens from taking effective enforcement action, there is no indication that the DEP will diligently prosecute its case.

The petition also points to uncorrected violations at Mountain State Carbon, LLC’s Steubenville East Coke Plant and at municipal facilities in Nitro, Weston, North Beckley, Huntington and Westover.

There are other ways in which West Virginia DEP is deficient. It is also failing to keep required records of its monitoring activities. It is either failing to regulate some pollutants (total dissolved solids) or setting limits on some pollutants (mercury) that allow more mercury in West Virginia streams than EPA guidance says is safe.

What happens next
Now that the petition has been filed, EPA now must respond in writing. It may also inform the state of West Virginia that its program is deficient. Before EPA could withdraw the National Pollutant Discharge Elimination System program delegation from the State of West Virginia there would be extensive public hearings.

The petition acknowledges that it is asking the United States Environmental Protection Agency to take drastic action. The Clean Water Act envisions that Congress and the EPA would set nationwide policy and leave it to the states to implement and run the program. Together the federal government and the states would progress toward the Clean Water Act’s ultimate goal of eliminating pollution of our streams.

While this may have been Congress’s vision, in West Virginia’s case it is not working. The petitioners as well as many, many others have spent years if not decades asking, begging, suing, or otherwise cajoling West Virginia to address these problems. In the petitioners’ view, it is time to let the EPA fix this mess.

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