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Judge blasts WVDEP, EPA over lack of mine pollution cleanup

CHRIS DORST | Gazette-Mail file photo
This is a strip-mine site in Southern West Virginia.

A federal judge on Tuesday blamed repeated delays by the West Virginia Department of Environmental Protection and weak oversight by the U.S. Environmental Protection Agency for the state’s failure to write and implement plans to clean up hundreds of streams where aquatic life has been damaged by coal-mining pollution.

U.S. District Judge Robert C. Chambers said the DEP has “spun its wheels” by not working on those legally required plans, saying there is “no end in sight” to the state’s inaction, and that the EPA has, for years, stood by and done nothing to force state officials to comply with the Clean Water Act’s mandates.

“All of WVDEP’s plodding and EPA’s appeasement have resulted in an abjuration of WVDEP’s and EPA’s duties committed to each by the CWA,” Chambers wrote in a 39-page ruling.

Chambers ruled in a case brought against the EPA by Appalachian Mountain Advocates lawyers on behalf of the Ohio Valley Environmental Coalition, the Sierra Club, the West Virginia Highlands Conservancy and the West Virginia Rivers Coalition.

The citizen group lawsuit, filed in January 2015, targeted “more than a decade of foot dragging” by state and federal officials to deal with what scientists have described as a significant problem: Streams that are rated by experts as “biologically impaired,” largely because of conductivity pollution from coal mining.

Scientists use electrical conductivity as a key indicator of stream health and the presence of other important pollutants, such as chlorides, sulfides and dissolved solids. Research has linked these pollutants increasingly to coal-mining activities and found that high levels of conductivity are associated with damage to aquatic life.

In U.S. District Court in Huntington, Chambers has, in recent years, issued a number of major rulings in cases where environmental group lawyers have sought to make coal operators and regulators take action on conductivity pollution.

The latest case specifically raised questions about compliance by the DEP and the EPA with Clean Water Act language that requires periodic listing of streams that don’t meet water quality standards. State agencies are supposed to publish such lists, and then develop cleanup plans, called Total Maximum Daily Loads, or TMDLs. When states don’t do so, the EPA is supposed to step in to ensure rivers and streams are restored.

Chambers noted that the goal when the Clean Water Act was passed in 1972 was to “solve the nation’s water quality crisis by 1985. But, the judge recounted, the EPA itself has missed key deadlines for TMDL development and across the country, citizen groups have had to go to court just to get the process started in their states. In West Virginia, a legal settlement 20 years ago was needed to jump-start the effort.

The judge noted in Tuesday’s ruling that the DEP previously had found — before a change in policy that was challenged in the lawsuit — that conductivity, or “ionic toxicity,” is the stressor causing biological impairment in 179 West Virginia streams. Environmental groups said in legal filings that there are nearly 400 other streams with similar problems.

In 2012, the DEP, under then-Secretary Randy Huffman, stopped issuing TMDLs addressing biological impairment, a decision that sparked the lawsuit that prompted Chambers’ ruling.

Huffman cited state legislation, pushed by the coal industry, that prohibited the DEP from writing such TMDLs until the agency came up with a new method of measuring biological impairment of streams.

Chambers noted that the DEP repeatedly has put off the date when it would complete that new method, and it also put off its estimated dates for developing any new TMDLs for biological impairment.

In 2012, the agency said it would take a year. The DEP said the same thing in 2014 and in 2015. Most recently, the DEP said, in July 2016, that it “will still be some time before” the agency completes the new method.

“For over four years, WVDEP has made successive promises to deliver the new methodology to the West Virginia Legislature and for four years has failed to even develop a methodology, to say nothing of actually submitting it to the Legislature,” Chambers wrote. “WVDEP has not produced a schedule for when the methodology might be finished.”

The judge said the EPA “attempts to disguise” the state’s inaction by saying that the DEP has only postponed or reprioritized doing the TMDLs for biological impairment, not refused to act.

Chambers said the record before him provided “ample evidence to doubt the credibility” of any dates offered by the DEP about when it would write the TMDLs in question or complete the methods for measuring biological impairment.

“Reprioritizing ... implies that WVDEP is working on the missing TMDLs, just in a different order,” the judge wrote. “But in reality, WVDEP is not working on the missing TMDLs at all. It is working on an assessment tool with no end in sight and no plan to develop the missing TMDLs anytime soon.”

The judge ordered the EPA to take action, one way or the other — to approve or disapprove, something the agency has not done — on the DEP’s failure to submit the TMDLs. Such a move by the EPA would then pave the way for further legal action, such as seeking a court order that would require the EPA to write the TMDLs itself, the judge noted.

EPA spokesman David Sternberg said federal officials “are reviewing the decision.”

Neither DEP Secretary Austin Caperton nor acting DEP public information officer Jake Glance responded to an offer for the state agency to comment on the judge’s ruling. While the case focused on the DEP’s inactions on the TMDLs, the state agency was not a party to the lawsuit.

During his State of the State address last week, Gov. Jim Justice blasted government environmental regulators, saying DEP officials need to stop saying “no” to business and industry. Justice did not offer any examples of the DEP doing so, but used part of his televised speech to blast DEP inspectors, saying they need to stop wearing T-shirts and old jeans and looking like they “maybe haven’t shaved forever.”

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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