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-thought-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?
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What about high TDS and conductivity from marcellus gas shale drilling, like the illegal dumping of frack fluids into Buckeye Creek here in Doddridge county?
The narrative standard has general applicability, so it makes sense to clarify that this guidance will relate to implementing & enforcing the standard in any context, not just mining.
Mr. Huffman’s quote: “It’s not a comment period, because it’s not a standards issue” makes no sense.
—- Numeric or narrative, standards are standards.
It’s not like there isn’t already an established EPA precedent to follow. And states like NC and FL that have set the standard for biological water quality monitoring. This is rather puzzling.
I think they’re trying to head off a comment period by saying that whatever they come up with was based on public input. What I’m afraid that will mean, based on their previous record, is that comments from citizens opposed to burying and polluting streams will be ignored while comments from coal industry will be given the utmost credence. Pardon the pun, but I think they’re trying to water down the law using token public input.
This ploy “how to keep an idiot in suspense” is part of the government game “we’re working on it.”
Stay tuned next year for more-of-the-same.
(Your tax dollars at work against you.)
This kind of reminds me of the old West question, Would you rather be stabbed, or shot?
Cindy is right, standards are standards – and it appears that all the Division of Environmental PERMITTING is interested in, is … talking about standards. God forbid they actually ever make a decision.
It was interesting at the Capitol today when Randy Huffman, apparently by slip of the tongue, referred to himself as the “Director of Mining.”
Now this is truly saying something — “in four to six weeks” — there’s no time for a public process.
3/3/10
http://www.register-herald.com/todaysfrontpage/x1765871159/DEP-secretary-tells-senators-EPA-is-ignoring-state
(Excerpt)
A year ago, mountaintop mining was the target, but that debate has since disappeared, he said.
Rather, the focus is now on clean water, and in all the discussions that ensued, Huffman said, the DEP has been left out of the loop.
“When they talked to us, they still have not asked for our opinion on how this water quality definition is to be formulated,” he said.
“That’s troubling, but not surprising.”
Consequently, he said, the “sudden change of direction” at the federal level has stalled a number of mining applications.
While the state is being ignored in the process, Huffman said, legislators and others need to keep in mind that 80 percent of the permitting for every lump of coal is performed at the state level.
What’s more, he said, even the U.S. Army Corps of Engineers is being omitted from the process.
Huffman pointed to the Spruce Knob permit approved in January 2007 as “the most scrutinized surface mining permit in Appalachian history.”
Two years after the permit was approved, the EPA raised objections and has intentions of quashing it, he said.
“In the 40-year history of the Clean Water Act, the EPA has only vetoed a dozen 404 (valley fill) permits nationwide,” Huffman said.
“We have dozens of permits that are hanging under the threat of veto right now if significant changes are not made by the companies.”
In four to six weeks, Huffman said he hopes the DEP can produce a narrative standard to comply with the federal law.
“Our biggest mistake we have made and it’s the hook EPA has in our back as a state is we do not have a protocol for enforcing the narrative water quality standard,” he said.
“We’re going to do that. I know enough about what the problem is, what the real impacts are.”
REMEMBER
That great MOU…
Obama Administration Takes Unprecedented Steps to Reduce Environmental Impacts of Mountaintop Coal Mining, Announces Interagency Action Plan to Implement Reforms: Federal agencies take coordinated action to strengthen oversight and regulation, minimize adverse environmental consequences of mountaintop coal mining
http://tinyurl.com/ydar7hz
http://www.epa.gov/wetlands/pdf/Final_MTM_MOU_6-11-09.pdf
This new OSM director’s pledge…
“Through tougher oversight and stronger enforcement of the Surface Mining Control and Reclamation Act, we are putting all hands on deck to ensure that Appalachian communities are protected,” Pizarchik said.
http://www.ens-newswire.com/ens/nov2009/2009-11-18-093.asp
That hearing…
Hearing held ahead of 30th anniversary of surface mine act on Aug. 3
http://www.appalachian-center.org/media/2007/07_26.html
This GAO report…
http://theenergydaily.com/coal/3961.html
All of it just words and more words.
Saying Mr Huffman’s comments are “curious” is way too kind. These recent comments of his and his many comments about mining issues this past year, have been so unfounded as to be just plain ridiculous and can only be explained as his effort to defend his bosses-Manchin and the coal industry. Randy is a nice person and I am amazed that he has the stomach to continue in his position.
Specifically on this issue of enforcement protocol for the nararative standards, Randy says, “What I am looking for are well-thought-out ideas on how we can measure aquatic life impacts and tie those impacts back to the problem …”. This is crazy! The DEP is full of excellent biologists and monitoring biologic impact and determining the sources of pollution is nothing new.
Also outrageous or just plain ineptitude is his defense for not having an enforcement protocol based on his assertion that 16 other states on a conference call did not have enforcement protocols therefore WV didn’t have to comply with federal law either!
He is clearly just stalling for time and trying to distract the media/public from his own failings.