WVDEP responds to Gazette article on MTR memo
The West Virginia Department of Environmental Protection just issued a statement responding a Coal Tattoo post and a Charleston Gazette article last week regarding DEP Secretary Randy Huffman’s testimony on mountaintop removal to the U.S. Senate, and an agency biologist’s memo responding to that testimony. Here’s the entire statement:
In response to an article written by Ken Ward Jr., that appeared in the Aug. 22 Charleston Gazette, Scott Mandirola, the Department of Environmental Protection’s Director of Water and Waste Management, and Pat Campbell, Assistant Director of DWWM, have issued the following statements:
“It is important to state that Cabinet Secretary Randy Huffman’s testimony to the members of the Senate Committee on Environment and Public Works was not misleading as stated in the Gazette article,” Mandirola said. “The sentence in his testimony that is the subject of the issue should not have been construed to mean that the only impact of valley fills was a diminished number of a certain genus of mayflies.
“In fact, when read in its full context, the reference to mayflies was only made to reiterate West Virginia’s use of its multi-metric West Virginia Stream Condition Index for impairment determinations. This index, which has been used since 2002 with EPA’s approval, does not use mayflies as a stand-alone determinant of stream condition. Taken out of context, one could interpret this particular part of the testimony to mean mayflies are the only impacts from valley fills. This was clearly not the intent.”
Campbell said: “It’s easy to take this statement out of context, I’ve worked with this type of information for 10 years and I, too, misinterpreted the statement when speaking with the Gazette.”
Doug Wood, the DEP biologist who wrote the memo, stated: “I did not say, nor do I believe, the Cabinet Secretary was misleading Congress. My memo’s intent was to help him be better informed on the effects of large valley fill discharges.”
Mandirola said, “The inappropriate release of the memo and the incorrect characterization of its contents and its intent by the Gazette are most unfortunate because of the time and resources it has taken to clarify and correct the matter.”
The Gazette article suggests that the Secretary misled Congress about the damage being done by mountaintop mining, and cites an internal memorandum written by Wood. However, the actual testimony addresses the changes to the permitting protocol agreements entered into by the U.S. Army Corps of Engineers, the EPA and the DEP, which outlined what needed to be included to allow for issuance of the various permits required.
The section of the testimony from which the statement was taken is below:
West Virginia Concerns Regarding Recent EPA Actions
The consequences of the EPA’s recent position moves West Virginia and the nation toward the elimination of valley fills. In fact, EPA’s position cannot be limited only to mining related fills. If these impacts are real, they are real for all earth moving activities and would impact highway construction and other development activities.
With the exception of mitigation, there has been no change in the law since the Clinton administration to justify the sharp change in direction that the EPA has taken. The only new development that appears to have precipitated the EPA to change its position on valley fills is the publication of a study conducted by the EPA’s Region 3 freshwater biology group in 2008 (Pond, et al., 2008). The WVDEP does not believe that this study justifies the sweeping change in regulatory approach the EPA is making.
Based on the Pond study, the EPA contends that water quality is not being protected downstream of the fills proposed by mining companies. In West Virginia, downstream water quality is principally regulated through the NPDES permit issued by the WVDEP, which believes that the NPDES permits it issues for these types of mining operations fully comply with all requirements, and the recently published Pond study does not change this belief. In fact, when WVDEP is satisfied that the proposed activity is protective, it issues a certification under section 401 of the CWA, over which it has authority.
The EPA contends that these mines will violate one of the State’s narrative water quality criteria. This water quality standard prohibits a “significant adverse impact to the . . . biologic component of aquatic ecosystems.” The Pond study concludes that this standard has been violated downstream from valley fills associated with mining operations, based on its application of two biologic assessment tools, the West Virginia Stream Condition Index (WVSCI) and the draft Genus Level Index of Most Probable Stream Status (GLIMPSS), to samples of benthic macroinvertebrate life taken from these streams.
A first observation about this study is that West Virginia does not use the draft GLIMPSS in its assessment of the biologic health of State streams. Various activities will need to be accomplished before GLIMPSS is finalized and put into regulatory use. Those activities include scientific peer review, allowing opportunity for public comment and the establishment of implementation thresholds. Second, WVDEP uses the WVSCI to assess biological integrity under the narrative water quality criterion. This practice has been utilized since 2002 with EPA approval. These tools are just that, tools. They are not stand alone determinants of compliance with the narrative criterion. Any application of these assessment tools in determining compliance with the narrative criterion must faithfully apply the language of the standard itself, which prohibits significant adverse impacts on the biologic component of the aquatic ecosystem. In that regard, the WVDEP considers streams with WVSCI scores less than 60.6 as biologically impaired.
Without evidence of any significant impact on the rest of the ecosystem beyond the diminished numbers of certain genus of mayflies, the State cannot say that there has been a violation of its narrative standard.
12 comments
I’ve read this press release multiple times now and can’t figure out any way to read Sec. Huffman’s original statement any differently than it sounded the first time.
If we are supposed to believe that the W.Va. DEP agrees there are impacts from valley fills “beyond the diminished numbers of certain genus of mayflies,” Sec. Huffman should call a press conference and let us all know what those impacts are.
http://www.wvablue.com/diary/4913/wva-dep-what-is-the-impact-of-valley-fills
Can we get this in English?
Mike,
Here’s my take… your mileage may vary…
Sec. Huffman had two of his subordinates issue a press release that basically says “Sec. Huffman did not mislead anyone.” The only reason given is: because we say so.
They then use a tried and true method of public relations: claim the words were taken out of context. Repeat the context. See if you can confuse everyone. It often works.
The problem here is, if you look at the context the words still mean the same thing you would think they mean all by themselves.
Another problem is, they didn’t provide any additional information. All they did is repeat what Sec. Huffman originally said.
I don’t see how this press release does anything to counter the critics who are calling for the W.Va. DEP to be taken over by the Federal government.
Even in context, it makes no sense. I don’t see that that statement was out of context to begin with. So eliminating a genus or two is not a significant impact? Doesn’t Wood’s memo still contradict that? You’re right Clem. If anything, this is even more reason Huffman should resign or OSM/EPA take them over. Either Huffman is ignoring the science being provided to him, or his system is keeping the science from getting to him. In either case, he’s not doing the job the citizens are paying him for.
I’ve read it twice now and it still says the same thing as the original statement. Perhaps Randy Huffman could better explain it. After all, he is the guy that made the statement. How about it Randy, can you just tell us what you were really saying? Or what you really meant to say? You are the Secretary of the WV DEP. Surely, you can speak for yourself.
Come on, most of us would respond in the same manner — a sidestep.
Need to keep in mind that his statements are on behalf of the governor — I’m sure Secretary Randy Huffman got more help with it than he wanted.
I agree - the statement and its meaning are just as originally stated and interpreted. According to Huffman, letting them mine is more important than protecting our natural resources.
Inspired by this press release, I went back and read Sec. Huffman’s testimony in its entirety.
Without even looking for it, I’ve already found one statement that is factually false. I’ve found another that is very misleading, either false or maybe (more generously?) just nonsensical. As soon as I can carve out the time, I’ll write it all up in detail.
(For those interested, the third link in Ken Ward, Jr.’s post is to a PDF file with Sec. Huffman’s testimony.)
Now written up in detail:
Will Sec. Huffman amend his Congressional Testimony?
http://www.wvablue.com/diary/4925/will-wva-dep-sec-huffman-amend-his-congressional-testimony
Im still wondering why all the talk is about mayflies. That EPA study found >60% of mined sites were impaired using WVDEP’s own assessment index(WVSCI). When specific conductance(mostly related to sufate) was greater than 500, almost 90% were impaired using the WVSCI (100% were impaired with the other index used by the authors). This study is a little over my head but it is clear that other aquatic life is being harmed, not just mayflies. Sec. Huffman needs to go back and read the report a little closer. Those impaired streams will go on the state’s 303d list and then DEP with public tax dollars will have to try to clean them up, not the coal companies.
Testimony: “A first observation about this study is that West Virginia does not use the draft GLIMPSS in its assessment of the biologic health of State streams. Various activities will need to be accomplished before GLIMPSS is finalized and put into regulatory use. Those activities include scientific peer review, allowing opportunity for public comment and the establishment of implementation thresholds.”
Translated to English: “It’s not fair for the EPA to assess WV stream quality using a metric–a “tool”–that WVDEP does not use. ”
Implied: The EPA’s metric is too strict, too difficult for WVDEP to implement, and if WVDEP actually followed that metric, our streams would be rated far more impaired than they currently are under our metric.”
Testimony: “WVDEP uses the WVSCI to assess biological integrity under the narrative water quality criterion. This practice has been utilized since 2002 with EPA approval.”
Translation: “The Bush EPA has been letting us get away with our insufficient assessment “tool” since 2002.”
Implied: “It’s not fair for the EPA under Obama to change what’s expected of us.”
Testimony: “These tools are just that, tools. They are not stand alone determinants of compliance with the narrative criterion. ”
Translation: “Like the Pirate’s Code (Pirates of the Caribbean) these stream metrics aren’t really a code, but a guideline.”
Implied:” We are free to ignore what the stream metrics tell us if we think it is exaggerating the biological impairment.”
Testimony: “In that regard, the WVDEP considers streams with WVSCI scores less than 60.6 as biologically impaired. Without evidence of any significant impact on the rest of the ecosystem beyond the diminished numbers of certain genus of mayflies, the State cannot say that there has been a violation of its narrative standard. ”
Translation: For a stream to be considered “impaired,” the WVSCI value has to be less than 60.6. ‘Diminished numbers of certain genus (sic) of mayflies’ are not sufficient on their own to yield a score lower than 60.6. Therefore, that criteria alone cannot prove that streams are biologically impaired, according to the WVDEP definition.
Implied: There is no additional evidence of harm (on top of the loss of mayfly genera) that could possibly be added to the narrative assessment that might actually push the WVSCI lower than 60.6.
So, it comes down to the very same thing as alleged in the WV Gazette article. Huffman still appears to be saying “There may be a loss of mayfly genera, but that isn’t sufficient for us to consider a stream impaired. As there is no other evidence of impairment beyond these losses, we conclude our streams are not impaired.”
The only way this statement could have been taken out of context is if the testimony that followed said something along the lines of “However, the WVDEP recognizes that there are additional indicators of biological impairment that when added to the loss of mayfly genera would lower the WVSCI lower than 60.6 and would therefore qualify a stream as impaired.
That was a good summary and interpretation, Rebecca. So if we only consider the DEP’s index (a less accurate but more industry friendly tool), greater than half of the streams studied were still diagnosed as impaired (from the EPA paper using WVDEP’s methods). What is DEP’s take on that? If onlyone or two were impaired, I can see their argument. But over half? Again, who foots the bill for TMDL development for the degraded mined sites? Does the company? Or the state, or the EPA?
Reading on EPA’s biological indicator website http://www.epa.gov/bioindicators/
they say “Taxonomy: Genus/species taxonomic identification provides the most representative information on ecological relationships and best resolution in sensitivity to impairment (U.S. EPA 1999a).” The WVSCI does not use this level of taxonomy does it? WV is such a biologically rich and diverse state, why not use the best science available? Loss of all the mayflies seem just as important as losing all the sunfish or trout from a watershed, especially when trout feed on mayflies. Doug Wood’s memo likened it to losing all apes, monkeys, and humans from an ecosystem.
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