WVDEP Trying to Head Off EPA on Mining Limits?
Charleston Gazette
3 March 2010
By Ken Ward Jr.
West Virginia’s Department of Environmental Protection just announced
plans to seek public input on how the agency should enforce a key part
of our state’s water quality standards.
But is this all just part of an effort to avoid any federal government
crackdown on mountaintop removal, or is WVDEP serious about coming up
with a plan to reduce the impacts itself?
WVDEP is going to start accepting public comments on implementation of
what’s known as the narrative standard. As we’ve gone over before on
Coal Tattoo, that standard prohibits:
… Any other condition that adversely alters the integrity of the waters
of the state … no significant adverse impact to the chemical,
physical, hydrologic, or biological components of aquatic ecosystems
shall be allowed.
Of course, that standard is one of the major legal triggers the federal
Environmental Protection Agency has cited in its efforts to try to
force West Virginia regulators and the state’s coal industry to reduce
the impacts of mountaintop removal.
WVDEP Secretary Randy Huffman called me this afternoon to tip me off
that this formal announcement was coming. You’ll recall that he was
nice enough to do the same thing two months ago, when WVDEP first
announced plans to come up with a document to guide enforcement of the
narrative standard. Oddly, though, Randy told me today that WVDEP is
not putting out a proposed guidance document for public review.
Instead, WVDEP is just going to ask anyone who is interested to submit
ideas for what such a document might eventually say. Randy said:
It’s not a comment period, because it’s not a standards issue.
But, he added:
That seems to be a big gap in the water regulatory program right now.
it’s necessary for us to do this to get a hold of our program.
Randy said he doesn’t want stacks of studies, reports or data, but
actual suggestions for how to interpret the narrative standard:
I’m not looking for data and reports. I have that. Nor do I intend to
debate the pros and cons of coal mining. What I am looking for are
well-though-out ideas on how we can measure aquatic life impacts and
tie those impacts back to the problem where we can then fix it, using
the tools of the Clean Water Act.
Comments can be sent to WVDEP’s office at 601 57th Street SE
Charleston, WV 25304. Or, you can e-mail them.
Still, why is WVDEP doing this comment period now, rather than drafting
its proposed policy and then seeking comment on it?
Well, Randy explained that he was just on a conference call earlier
this week with environmental protection officials from 17 other states.
They were all worried because of reports out of EPA Region 4 (which
includes Kentucky and Tennessee) about a federal report — expected out
soon — that describes what the current science says about the levels of
water conductivity or salinity that are causing serious damage to
aquatic life.
According to Randy, that EPA report was putting the figure at between
280 and 350. Typically, conductivity is measured in terms of micro
Siemens per cm. And Randy and other state regulators were none too
happy about this EPA finding:
You can’t do anything with that. You can’t clean off a parking lot with
that. There is just concern there.
We’ve all been waiting for months for the results of another in-depth
EPA examination of mountaintop removal’s impacts. In the meantime, the
respected journal Science published a peer-reviewed paper that
found the impacts to be “pervasive and irreversible.” And, EPA’s work
has apparently actually produced two reports, one a more general
examination of mountaintop removal and another more narrow study
looking at the conductivity issue.
So it’s a little confusing now for WVDEP to be seeking comment without
even giving the public a draft proposal to comment on. And why is WVDEP
so focused on the narrative standard, instead of proposing numeric
water quality standards that would give the coal industry much more
concrete targets? And, why did the WVDEP’s news release try to draw
attention away from the coal industry, the clear focus on this problem:
Water quality has become the main topic of conversation across all
types of industry, and there is a great deal of debate about what is or
should be considered impairment. Our goal is to take into consideration
the ideas of others as we develop our plan for implementing and
enforcing the narrative standard.
The goal of the as-yet unreleased EPA conductivity study was to figure
out what level of pollution from mountaintop removal was harming water
quality — so regulators could then set a standard and write permit
limits meant to avoid that harm. Why not wait and see what the science
says, and write new regulations accordingly?