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.