DEP Bills Would Refine Narrative Water Quality Standards

The State Journal
23 February 2012
By Pam Kasey

Two bills now before the Legislature represent a next step in the standoff between the state Department of Environmental Protection and the US. Environmental Protection Agency over permitting water pollution discharges from coal mines.

Senate Bill 562 and House Bill 4518 more closely define the elusive biologic component of the state's narrative water quality standards.

Measuring compliance with the biologic component, the bills say, requires "evaluation of the holistic health of the aquatic ecosystem."

It also requires a determination, essentially, that a stream supports a balanced aquatic community, contains appropriate levels of fish and has enough of the right streambed bugs to support the appropriate fish.

That is more definition than before, but still seems vague. How would DEP use it to decide if a coal mine operator is discharging too much pollution?

"DEP would have to come up with a rule, a formula," said DEP Secretary Randy Huffman. "And we've already been working on that."

Slow-moving stand-off

The stand-off between the two agencies began in early 2010, when the EPA issued a provisional water quality standard in Appalachia for conductivity — salinity, essentially — to protect aquatic communities below surface mines, primarily mountaintop mines.

The move established a single number, 500 microSiemens per centimeter, as a proxy for the complex and less easily implemented biologic component of the narrative water quality standards — a component represented in West Virginia law by language like "no significant adverse impact" to aquatic ecosystems.

Huffman conceded at the time that West Virginia had no protocol for implementing its narrative standards, but he also objected to EPA's approach. The EPA should not be able to simply impose a number, he argued, and usurp the state's permitting program.

DEP, August 2010: A protocol

So, in August 2010, his agency released a protocol: guidance for implementing the narrative standards.

The guidance put in place four new steps.

Mine operators would be required to submit Aquatic Ecosystem Protection Plans in their permit applications.

If the agency saw potential for problems downstream, permits would be subject to Whole Effluent Toxicity limits. WET testing measures the total effect of a discharge on a sensitive water flea and would be conducted quarterly.

Operators would monitor the chemistry of pollution discharges and submit West Virginia Stream Condition Index scores — complex biological assessments of overall stream health — "regularly," perhaps semi-annually. A WVSCI score of 68 has previously been DEP's cut-off below which a stream was considered impaired.

Finally, if WET limits were exceeded, operators would have to develop Adaptive Management Plans to meet environmental objectives.

EPA, since: Not satisfied

"They're reviewing every permit," Huffman said.

"What ultimately comes out in those permits is some combination of what we suggested in our guidance and what EPA is still trying to impose on the state" — that is, 500 microSiemens per centimeter conductivity, except where the agency can be persuaded to accept a higher number, Huffman said, or where it requires a lower number still.

The guidance isn't getting a proper test, he said.

The Aquatic Ecosystem Protection Plans and the Whole Effluent Toxicity testing in the narrative guidance were aimed specifically at operations with valley fills, he said.

"And there are no valley fills being approved, so it's not being applied in the spirit to which it's meant for," he continued. "We can implement any part of this guidance document we choose and at the end of the day EPA will say, ‘If you don't have these numbers in them we're not going to approve them.'"

DEP, 2012: Make it law

The result of all of this, Huffman said, has been a slowdown in the numbers of permits issued, from 400 a year to 200.

That's what sticks in Huffman's craw — that, and the fact that the state's narrative water quality standard was approved by EPA in the first place.

"Here's what hasn't been done," he said. "It's been defined over 13, 14 years by internal DEP policy as a 68 WVSCI score. But it hasn't been defined in any kind of legislative or rulemaking process. "

And once the standard is defined, where is the line of impairment? That decision should lie not with EPA, he said, but with the state.

"I believe that engaging the state Legislature through the rulemaking process is the right thing to do," he said. "Why shouldn't they have a say, especially when this is the issue that is determining the future of coal mining in the state?"

If the Legislature passes the new definition, it will ask DEP to come back with a formula for carrying it out.

"You have to be able to quantify all the things that we list in there" — the balanced aquatic community, appropriate levels of fish, sufficient stream-bottom bugs — "in some systematic way to have uniform application across the state," he said.

He expects that DEP would have a formula before the Legislature in 2014.

"Then we will be able to say, ‘This is what the state has decided and it's in the law,'" he said. "That will create a level of accountability within EPA's application of the Clean Water Act in West Virginia that they don't have today."