Are compliance orders an environmental 'get out of jail free' card?
The US Environmental Protection Agency gave West Virginia
permission to administer the Clean Water Act.
West Virginia Public Broadcasting
25 September 2009
By Erica Peterson
The Dunkard Creek fish kill has shined a light on "compliance orders,"
which give polluters extra time to comply with environmental laws.
State officials and environmentalists still aren’t entirely certain
what caused the massive fish kill in Dunkard Creek earlier this month,
but evidence suggests high levels of the chemical compound chloride was
a likely culprit.
Since at least 2002, mining company Consol Energy has been releasing
chloride into Dunkard Creek at higher levels than state standards
allow, but the West Virginia Department of Environmental Protection has
repeatedly given the company extra time to comply.
State regulators allowed Consol to continue to pollute Dunkard Creek
through so-called compliance orders.
The DEP uses these compliance orders to give other mining companies
more time -- as those companies continue to violate federal Clean Water
laws.
In June, the Appalachian Center for the Economy and Environment and
various environmental groups asked the U.S. Environmental Protection
Agency to take over regulating the state’s water from the DEP.
“We think at this point that West Virginia has fallen so low below the
federal floor that the feds need to come back in and bring us back up
to snuff,” Derek Teaney, a staff attorney with the Appalachian Center,
said.
“EPA gave West Virginia permission to administer this program, but we
have example after example after example of where the West Virginia
Department of Environmental Protection has failed to live up to its
promise to enforce the program the way the EPA requires it to,” Teaney
said.
The petition lists a litany of complaints against the DEP. Many of them
have to do with the agency’s repeated use of compliance orders.
Compliance orders are issued when a company isn’t able to meet the
requirements of the federal Clean Water Act, and the DEP agrees to give
the company more time.
A company has to meet benchmarks in pollution reduction and be obeying
the water quality standard by the time the compliance order expires.
Teaney says that the DEP has been abusing these orders.
“As the West Virginia DEP has interpreted it, they basically have been
using them as ‘get out of jail free’ cards for water quality-based
effluent limits,” he said.
Teaney says the agency routinely extends the deadline for compliance.
It did this three times for chloride, the chemical compound that likely
played a role in the Dunkard Creek fish kill.
In 2004, 2007 and 2008 the DEP issued compliance orders to Consol
Energy for chloride discharges from their Blacksville No. 2 mine. Now,
the company has until 2013 to comply with the federal standard.
DEP Secretary Randy Huffman says compliance orders can benefit the
environment in the long run.
“To me, the tradeoff for a company in a particular industry getting
more time to comply ought to be them providing something back that not
only benefits the environmental quality at their outfall or their
particular point, but is also data and research that can be used by
other companies that have similar problems,” Huffman said.
Huffman says compliance orders can help the state figure out ways to
clean its water more effectively.
“And that takes money,” he said. “And it also takes time. And to me,
those two things ought to be associated with a compliance order: Time
to come into compliance but during that time you use that time to spend
money and effort to research treatment or material handling plans or
other technologies that I don’t think are being researched as
thoroughly.”
The problem is that compliance orders don’t actually require companies
to do any research. Huffman argues that it’s in a company’s best
interest to research ways to come into compliance, because eventually
they’ll be required to obey the law.
Teaney says the DEP’s track record shows compliance orders don’t
necessarily lead to research being done.
“And in the example of selenium, these compliance schedules were issued
in 2003,” Teaney said. “The agency gave companies until 2006, three
years to ‘research’ the solution to this problem.
“And I think the record is very clear that neither the agency nor the
industry did anything during that period to figure out how to solve the
problem.”
The Appalachian Center’s petition lists ongoing problems besides
selenium and chloride. The DEP has also skirted the law on mercury and
aluminum discharges, the petition says.
In early 2008, the EPA fined Massey Energy a record $20 million civil
penalty for repeated Clean Water Act violations at mines in West
Virginia and Kentucky.
Teaney says the problem isn’t limited to Massey. He says the DEP was
ignoring mining violations for years.
“You’ve got to understand that the Clean Water Act is based on
self-reporting,” he said. “So every three months the coal companies
tell the DEP what they’ve discharged over the past three months. And
it’s a simple matter of comparing those numbers to the numbers in the
permit to determine whether or not there’s a violation. But apparently
no one was even looking at the discharge monitoring reports.”
In a November 2007 memo, the Bush Administration EPA chided the DEP for
using compliance schedules improperly. It gently reminded the agency
that compliance schedules should only give companies the minimum amount
of time needed.
Coalfield citizens are less gentle in their criticism of the DEP.
Lorelei Scarbro is an organizer with Coal River Mountain Watch in
southern West Virginia. She says her community has been dealing with
mine pollution for years.
“The people in the state of West Virginia certainly are not protected,”
Scarbro said. “And when I speak at hearings in front of the DEP, every
time I ask them ‘You are the Department of Environmental Protection.
Who are you protecting?’”
“Because they certainly aren’t protecting the environment, and they
aren’t protecting the citizens, especially in southern West Virginia
and now, apparently in northern West Virginia, too.”
There are signs that the Obama Administration may be taking another
look at these compliance orders.
In a July letter, the Region 3 EPA announced a review of West
Virginia’s surface mining discharge permits – and compliance orders.
According to the letter, the EPA may use its power to veto a compliance
order if it fails to meet the requirements of federal law.
Reporter Jessica Lilly contributed to this story.