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
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
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
"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
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
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
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
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