DEP Attempted to Suspend Water Standards in Dunkard Creek

West Virginia Public Broadcasting
28 September 2009
By Erica Peterson

The West Virginia Department of Environmental Protection approved two orders to suspend water quality standards for Dunkard Creek and other waterways being polluted by Consol Energy.

Environmental lawyer Derek Teaney says it’s one thing to give Consol additional time to meet chloride standards, as it did in 2004, 2007 and 2008 with its compliance orders.

But he says the DEP also was trying to do something unprecedented in those compliance orders: suspending federal water standards entirely.

“DEP has put itself in a heck of a position here,” Teaney said. “Arguably, it has unilaterally disarmed itself.

“I expect Consol to point to that provision and say, ‘but there is no water quality standards for chlorides,’ if DEP were to try to prosecute it for violations. And that’s why DEP just needs to be careful about what it puts in these compliance orders.”

To understand what Teaney is talking about here, you have to understand compliance orders.

The West Virginia DEP has used them to give mining companies more time to comply with the federal Clean Water Act.

Three of these orders were issued to Consol Energy for chloride: in 2004, 2007 and 2008. They allow Consol to discharge an unlimited amount of chloride into Dunkard Creek until 2013.

But the company still has to adhere to water quality standards for the entire stream or river.

For example, Consol might be allowed to discharge more chloride from one mine site, but it still can’t cause the entire stream to become overwhelmed with pollution.

But in its 2007 and 2008 compliance orders, the DEP actually included language to also suspend water quality standards: “From the effective date of this order…the water quality standards and final effluent limitations for chloride will continue to be suspended for the following permitted outlets.”

But the DEP can’t just waive water quality standards. The EPA would have to approve – something it never did.

“DEP might as well have ordered the sun to rise in the west tomorrow morning for all the effect that language has on the compliance order,” Teaney said.

Because the DEP can’t allow a company to ignore water quality standards without EPA approval, the change to the compliance orders doesn’t have much of an effect. But Teaney says it could cause problems if the DEP decides to prosecute Consol for its role in the Dunkard Creek fish kill.

DEP Director of Waste and Water Management Scott Mandirola says the compliance order would not hinder enforcement efforts.

He signed one of the two orders which attempt to waive water quality standards. But he says he doesn’t know how the language got in there.

“But typically no, suspension of a water quality standard should not take place within an order,” Mandirola said.

One more thing about the timing of the 2007 compliance order: Teaney suggests the DEP tried to waive water quality standards for Consol in this order, in part because they weren’t willing or able to approve a socio-economic variance for the company.

In 2005, Consol applied for a variance, which would effectively mean there would be NO controls on the amount of pollution going into Dunkard Creek. Variances also have to be approved by the EPA.

The DEP rejected Consol’s variance permit in September 2007 – three months after it approved the compliance order which attempts to waive water quality standards.

“The interesting thing about the June 1, 2007 compliance order is that DEP purports to give them in essence a variance without going through the proper procedures,” Teaney said. “The compliance order goes a long way towards being a de facto variance.”

Teaney says this is just one more reason to have the EPA take over the state’s water monitoring program. A request to do just that is pending with federal officials.