The Sierra Club, West Virginia Highlands Conservancy, Coal River Mountain Watch, and Ohio Valley Environmental Coalition want the U.S. Environmental Protection Agency to begin formal proceedings to withdraw approval of state's National Pollutant Discharge Elimination System, NPDES, program, which they say is "grossly deficient."
"The State's capitulation to the industries it is obligated to regulate under the Clean Water Act and its resulting failure to enforce or maintain its NPDES program leave EPA no choice but to withdraw its approval of that program," the groups say in their petition, filed June 17.
The West Virginia Department of Environmental Protection's failure to carry out the legal requirements of Section 402 of the Clean Water Act "is greatly harming the State and has led to a the impairment of over 33 percent of West Virginia's rivers, streams, and lakes," the groups charge.
Acid mine drainage in Preston County, West Virginia. Acid mine drainage destroys aquatic life and makes water unfit for human consumption. (Photo courtesy Appalachian Center)
Thousands of miles of the state's waters are impaired by microorganisms, acidity, iron, aluminum, mercury and selenium, the petition states.
"We take this action with great reluctance and in utter frustration," said Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy. "For decades, we've participated in state-focused actions to assist, cajole, force and demand improvements in the West Virginia Department of Environmental Protection's handling of the NPDES permitting program."
"We can no longer stand by and watch while more and more of our streams are slowly and irreversibly degraded by inadequate permitting, lack of enforcement, and apparent ignorance or disregard for the law," said Rank.
Under the Clean Water Act, states can seek EPA approval to operate their own water pollution control programs. This allows state regulators to handle water pollution permitting and enforcement and most states have received approval to do so.
Calling on the EPA for "swift action" to protect West Virginia's citizens and environment, the groups say there has been a "nearly complete breakdown" of West Virginia's maintenance and enforcement of its NPDES program.
"The West Virginia Department of Environmental Protection's abdication of its duties to regulate water pollution requires swift action by EPA," says the petition, signed by environmental group lawyers Joseph Lovett, Derek Teaney and Aaron Isherwood.
"West Virginia has a long history of allowing to coal operators to evade the selenium requirements of the Clean Water Act," the petition states.
One problem the groups cite in their petition stems from state legislation passed this year that suspends all selenium water quality based effluent limitations in West Virginia permits until July 1, 2012, regardless of whether the regulated discharges have the reasonable potential to cause or contribute to violations of the selenium water quality standard. The groups claim this new law is illegal.
"WVDEP consistently and blatantly disregards the permitting regulations when issuing permits for mining operations with a reasonable potential to cause or contribute to water quality standards violations related to selenium," the groups say in their petition.
Earlier this year, a federal judge ordered WVDEP to begin regulating selenium, but DEP Secretary Randy Huffman has indicated the state plans to appeal.
In their petition, the groups charge that West Virginia has failed to issue NPDES permits for point source dischargers at bond forfeiture mining sites and at abandoned mine land sites. But, they point out, many of these sites produce acid mine drainage. The state agency has also failed to obtain such permits for its own reclamation work.
The state agency's failure to require NPDES permits for abandoned mine lands discharges has led to "devastating statewide impacts including the obliteration of aquatic life in many of the acid mine drainage streams" impaired by iron and acidity, the petition states.
The petition draws attention to the abandoned Kempton/Coketon Mine complex on the North Fork of the Blackwater River, straddling the Maryland/West Virginia border.
An electromagnetic survey done by helicopter to characterize abandoned mine land and flooded mine tunnels in the complex verified adverse impacts in over 31 square kilometers in the headwaters of two major watersheds, the petition states.
The state agency consistently fails to comply with the public participation requirements of the Clean Water Act, the groups charge, approving settlements and issuing final orders that result in major modifications that are not subjected to the public notice and comment requirements.
The WVDEP has issued scores of “modification orders” to extend the final compliance date to the expiration date of permits, "not one of which was subject to public notice or comment," the groups complain.
The petition states, "West Virginia's unwillingness to force coal operators to comply with their permit limits makes a mockery of the Clean Water Act."
"WVDEP has a long history of failing to act on permit violations and enforce NPDES permit limits," the coalition declares. "The lack of permit enforcement fails to deter future violations throughout the state."
The 26-page petition is online at: http://wvgazette.com/static/coal%20tattoo/epapetition.pdf
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