Coal Industry: State Water Quality Revisions “Overdue”

The State Journal
15 October 2012
By Taylor Kuykendall, Reporter

With membership accounting for 98 percent of the coal produced in the state, the West Virginia Coal Association is throwing its weight behind revision of state water quality regulations.

Specifically, the organization takes on aluminum, beryllium and selenium criteria, designation of all streams as drinking water sources, trout stream designation and narrative criteria implementation biological stream measurements.

"While the West Virginia Department of Environmental Protection has greatly improved the water quality standards rulemaking process since assuming that duty from the Environmental Quality Board in 2005, there remains several areas where the agency needs to correct historical issues inherited from the board," the WVCA writes in comments submitted last week. "In these areas, WV DEP can build on the notable progress made to date by providing more rationality to the program."

Kevin Coyne, assistant director of the Water Quality Standards program at the DEP, said several responses were received Friday afternoon and the agency has not yet reviewed them all. The agency is not planning on formal responses to comments submitted.

According to an approximate timeline Coyne pointed out in a presentation on the DEP's website, the agency will begin reviewing and fact gathering in January, and a public hearing is expected by mid-summer.

The DEP is required to review the standards every three years, but Coyne said the standards are often reviewed more frequently.

"This gives us an idea of what people are needing or would like to see us move forward with when we do our formal review of the water quality standards," Coyne said.

One thing the agency is watching for, Coyne said, is EPA finalization of a change to the recreational use bacteria rule.

State water quality standards are developed to comply with the federal Clean Water Act. The standards "form the legal basis for controls on the amount of pollution entering West Virginia waters."

The standards are used in issuing permits to industrial and municipal entities, including, of course, the coal industry. The standards are reviewed every three years, and the DEP recently opened up for comments its 2014 review, which will begin in 2013.

In its comments, the coal group said DEP is to be commended for improvements to the process guiding water quality standards overall, but "several areas of concern" could be addressed in the 2014 review.

"These areas include specific water quality standards where the state maintains outdated criteria, long ago replaced by more scientifically defensible standards, revisions to specific standards that would increase practical environmental and stream protection, application of designated use that needlessly complicates the assignment of effluent limitations and, in at least two instances, where WVDEP maintains EQB-created interpretation of state standards that are in direct contravention of the public policy of the state as expressed by the West Virginia legislature," wrote Jason Bostic, vice president of the WVCA.

The group cites the West Virginia Water Pollution Control Act, which states that the public policy of the state of West Virginia is to "maintain reasonable standards" that consider public health, wildlife protection and expansion of employment opportunities, including "healthy industrial development."

"WVCA believes in several instances … WV DEP maintains water quality standards far beyond ‘reasonable standards of purity and quality' that certainly do not promote ‘healthy industrial development' that is necessary or consistent with ‘the expansion of employment opportunities," the comments state.

According to the WVCA comments, the DEP is operating its discharge permitting program under a "regulatory illusion" that all state waters serve as public drinking water supplies.

The WVCA says the state's federally approved standards provide water sources to be considered for aquatic life use, or water contact recreation use or public drinking water use. However, the WVCA said the DEP has erred in applying public drinking designation to all West Virginia streams.

"This regulatory practice began with the entire length of substantial streams where drinking water intakes were actually located and, as the (discharge) regulatory program matured, was extended to every stream in the state," the association wrote.

The decision to treat all streams as public drinking water supplies, the WVCA states, has been clearly rebuked by the Legislature and rejected by the EPA.

The WVCA also said trout stream designation is done in a process that is "convoluted and nearly incomprehensible." The data the DEP relies on, the comments state, come from the Department of Natural Resources, an agency with no environmental regulatory authority.

"Once a stream is placed on the list, the trout stream designation cannot be disputed later in a challenge to a specific NPDES permit limit and can only be changed through the Legislature or by a wholesale rule change," the organization wrote.

The current process, the WVCA writes, creates a regulatory "twilight zone" where a permitting authority relies on an agency with no regulatory obligation to determine effluent limits. The coal group specifically calls for different criteria for natural reproducing native trout waters, reproducing non-native waters and waters stocked with non-native trout.

The WVCA request that the 2014 review also examine the potential for adding a "fair mechanism for challenging trout water designations."

In the case of beryllium, WVCA states, the WVDEP maintains lower-threshold criteria already rejected and revised by the Environmental Protection Agency. Maximum beryllium criteria in West Virginia are three orders of magnitude lower than the EPA's national recommended criteria.

In the case of aluminum criteria, the organization urges adoption of a standard that takes into account water hardness on toxicity effects, something already adopted and approved in Colorado and New Mexico.

Selenium requirements, the WVCA writes, are particularly troublesome for the industry and it encourages revision with the assistance of West Virginia University, Marshall University and the West Virginia Water Research Institute.

"An ever growing body of scientific evidence and data confirms that continued application of the current selenium criteria to West Virginia waters is misplaced and offers no measurable improvement to environmental protection while causing widespread and extraordinarily expensive compliance issues," WVCA commented.

The West Virginia Legislature has written in West Virginia code that federal criteria for selenium may not be applicable in West Virginia.

According to the EPA, "major sources of selenium in drinking water are discharge from petroleum and metal refineries; erosion of natural deposits; and discharge from mines." Selenium, the EPA states, has been linked to "hair or fingernail losses, numbness in fingers or toes, or problems with their circulation" in people who drink selenium-contaminated water.

The WVCA urged the agency to take a more proactive approach to developing regulations specific to West Virginia as opposed to "submissively" waiting for revision of federally recommended standards.