I am not sure if anyone else saw this, but SB 615, and the comparable SB
562 are on a fast track and are on the calendar for final passage today.
These bills could easily reverse our victory before the EQB on the New
Hill West permit in Morgantown.
Jim Kotcon
THE STATE JOURNAL:
Bill aims to narrow scope of DEP water pollution permits
Posted: Mar 08, 2012 5:57 PM EST Updated: Mar 08, 2012 8:52 PM EST
By Pam Kasey
The coal industry is backing a bill that would remove a provision in
state water pollution discharge permits that requires compliance with
all water quality standards.
It's a provision the industry says applies, unfairly, only to coal.
Although DEP representatives were unavailable to confirm or correct this
at the time of this story, a quick review finds it in other water
pollution discharge permits as well.
Senate Bill 615, amending the state's Water Pollution Control Act, was
introduced by Sens. Art Kirkendoll, D-Logan; Mike Hall, R-Putnam; Erik
Wells, D-Kanawha; and Ron Stollings, D-Boone.
The bill would insert new language into the Water Pollution Control Act
stating, essentially, that compliance with effluent limits is compliance
with the law.
That sounds obvious, but West Virginia Coal Association Vice President
Jason Bostic explained the meaning.
The way it stands now, a coal mine operator's water pollution permit
contains limitations for a number of pollutants. In addition, it
includes language stating that, even if the permittee meets the
pollution limitations specified in the permit, it also can't violate any
other water quality standard.
The industry wants that to stop, Bostic said.
"That sets us up to get sued for things that aren't a parameter in our
permit," he said. "Since they aren't in our permit, we aren't monitoring
for them — so how would we know we're violating them?"
"We've had notices of intent to sue for high conductivity," Bostic said
— a water quality measure for which neither the state nor the federal
government has set a water quality standard. The U.S. Environmental
Protection Agency has, however, set a controversial benchmark for
conductivity as a proxy for the tricky-to-implement biologic component
of West Virginia's narrative water quality standard.
"In concert with what EPA alleges, these anti-mining folks allege that
high conductivity is violating the narrative water quality standards,"
he said.
So a statement in a coal mine operator's water pollution discharge
permit requiring the operator to meet not only its specific effluent
limitations but also all of the state's other water quality standards is
opening the operator to lawsuits.
The requirement to meet all water quality standards does appear in
other, non-coal water pollution discharge permits.
The general permit for sewage systems treating less than 50,000 gallons
per day, for example, reads, "The effluent or effluents covered by this
permit are to be of such quality so as not to cause violation of
applicable water quality standards adopted by the state Environmental
Quality Board" — a function taken over by the DEP.
A general stormwater construction permit reads, differently but
relevantly, "This permit may be re-opened and modified, suspended,
revoked and reissued or revoked at any time if information becomes
available and demonstrates that the established controls do not attain
and maintain the narrative water quality standards …"
Bostic expressed further frustration over the fact that the Clean Water
Act allows these suits to bypass state permitting and legal authority
and go straight to federal court.
"We're taking responsibility for the program away from the people of
West Virginia and the Legislature and Department of Environmental
Protection and putting it in the federal government's hands where it
doesn't belong," he said. "It's certainly not supposed to be in front of
a federal judge."
The goal of the bill, he said, is to bring the coal program into
conformity with the federal program and, in his mind, also with the
non-coal industrial sector in West Virginia.
"We want to get away from what has become a very hazardous situation
where you have different rules that apply only to coal mining," he
said.
The bill will get its second reading on March 9 and will come to vote
after its third reading on March 10.