By John McFerrin

The J. F. Allen Company has asked for a Major Modification of its NPDES permit for its Pond Lick Quarry outside Elkins.  The quarry drains treated waste water into Shavers Fork, a trout water.

The federal and stte Clean Water Acts prohibit any discharge of any pollutant into the waters of the United States.  States may issue a National Pollutant Discharge Elimination System (NPDES) permit which allows limited amounts of listed pollutants to be discharged into streams.  The limits are supposed to be as low as the technology available to control the pollutants makes possible and low enough that the discharged pollution will not violate water quality standards in the stream the discharge goes into.

For about fifteen years the J.F. Allen Company has had a NPDES permit to discharge into a “tributary” of Shavers Fork, itself a tributary of the Cheat River.  That permit authorizes it to discharge limited amounts of aluminum into Shavers Fork.  Now it wants to modify its permit to eliminate the aluminum limit from its permit.  The result of this would be that it would no longer have to monitor the discharge for aluminum.  The practical result of this would be that it could discharge an unlimited amount of aluminum with little possibility that it would be deteacted.

The West Virginia Department of Environmental Protection asked for comments on this proposed change.  As it might have expected, the West Virginia Highlands Conservancy, and its organizational member the Shavers Fork Coalition—had plenty to say, as did several other people and organizations.

The comments point out that the request is based upon testing that should not be relied upon.  The company had submitted test results of water coming from the quarry which showed that aluminum was not present in objectionable concentrations.  The testing was done from January through September, 2017.  During that time, the quarry did not operate.  The comments contend that the tests only show that, if the quarry never operates, it will not add aluminum to the stream.  This is no basis for modifying a permit which will control discharges when the quarry is operating.

The comments also suggest that, when there is testing during a period when the quarry is operating, the Department of Environmental Protection perform the testing.  There may be some doubt about the reliability of testing performed by the J.F. Allen Company.

There was also a question about calling the potential discharge a discharge into a “tributary” of Shavers Fork.  The pollution control system used by J. F. Allen Company involves a treatment pond which collects water from the site, allows sediment to settle to the bottom, and discharges the water.  The pond spans the entire valley drained by the “tributary” into which it discharges.  The pond is not discharging into a tributary; the discharge is the tributary.  It would be more accurate to say that the operation is discharging into Shavers Fork.

Regardless of how one characterizes the discharge (into a tributary or not), there is still doubt about the capacity of the treatment facilities.  At the time the quarry got its initial permits there was some doubt about whether or not they were adequate.  There have been several instances since the permits were first issued when the facilities proved inadequate.  There have been several instances when the discharges were over the limits for iron, aluminum, and sediment even though there was only site preparation, but no production, going on at the time.  Actual production would only make it worse.

There is also a question of the characterization of Shavers Fork.  The company assumes that it is not currently impaired by aluminum pollution.  This is not true.  The Department of Environmental Protection currently has data which shows that Shavers Fork is impaired.  The Department should use this data in determining whether or not to grant the company’s request to remove the limits on aluminum from the permit, a move which would make possible the addition of more aluminum.

The commenters also pointed out the interplay of between the acidity of Shavers Fork and the discharge from the quarry.  Shavers Fork routinely has instances of low pH; these usually coincide with times of high flow.  Typically, times of high flow in Shavers Fork would also be times of high flow from the quarry.  This means that large discharges from the quarry would often come when Shavers Fork had its lowest pH.  The pH of the stream can have a dramatic impact upon whether aluminum remains dissolved in water, how it affects aquatic life, etc.  The comments contend that the Department should consider this.

In its comments, the West Virginia Highlands Conservancy asked (as did other commenters) that the permit modifications be denied until a decision could be based upon data collected when the quarry is actually operating.  The Conservancy further asked that the Department consider that Shavers Fork is the actual receiving stream and that it is already impaired by aluminum. It also asked that aluminum limits set by the permit consider that Shavers Fork is a trout stream.

Finally, the Conservancy asked that J. F. Allen Company be required to certify that its treatment facilities are adequate to meet permit limits when the quarry comes into full production.

The commenters also asked that the Department of Environmental Protection conduct a public hearing on the request.