DEP Considers Next Step in Water Quality Case
Charleston Gazette
11 November 2010
By The Associated Press
CHARLESTON, W.Va. -- The state Department of Environmental Protection
has not decided whether it will appeal a federal court ruling requiring
it to obtain water quality permits to clean up abandoned coal mines,
DEP Secretary Randy Huffman said.
For now, the agency will apply to itself to obtain discharge permits,
Huffman told The Associated Press. The agency could ask the full 4th
U.S. Circuit Court of Appeals to consider the case as well.
A three-judge panel from the appellate court ruled Monday that the
federal Clean Water Act requires the DEP to obtain permits to discharge
pollutants when it reclaims abandoned coal mines. In West Virginia, the
DEP issues discharge permits.
"We're required to issue permits to ourselves,'' Huffman said during an
interview Tuesday. "I still think it's somewhat comical.''
The lawsuit was filed by the West Virginia Highlands Conservancy and
the West Virginia Rivers Coalition, which were seeking to reduce acid
mine drainage. The 4th Circuit upheld an earlier ruling by U.S.
District Judge Irene Keeley requiring DEP to obtain the permits.
Keeley faulted the DEP for not setting acid mine drainage limits at 18
sites in northern West Virginia. Her January 2009 order concluded the
state violated the Clean Water Act and allowed too much iron, manganese
and aluminum into waterways.
The DEP had argued it wasn't required to obtain pollution discharge
permits, which limit the amount of specific pollutants in water coming
off a mine site.
Huffman said he feels the decision creates a major conflict of interest
for him and the agency.
"The DEP issues itself permits and it also enforces limits on itself,''
he said. "What do I do when I'm out of compliance? I issue and order
and a penalty to myself.''
Huffman also described the ruling as "sad'' because the DEP's abandoned
mine reclamation program works, in his estimation, and treats a lot of
contaminated water. Now DEP will need a permit limiting the amount of
pollution it can discharge and likely will need to add more treatment
sites and acquire more land.
"It's going to increase the impacts,'' Huffman said. "We're not
convinced at this point that quality will be better off.''