SB 562 exemplifies the problem with regulation in West Virginia

By Dan Radmacher

Why are West Virginia?s streams so polluted that less than a quarter of them can support their designated uses ??such as recreation, providing drinking water, or supporting aquatic life?

The example of the passage and implementation of Senate Bill 562 is very telling. It?s yet another case of state regulators and lawmakers capitulating to a polluting industry rather than enforcing laws to protect the environment.

In recent years, it?s become very clear that waters downstream from the valley fills associated with mountaintop removal mining are at greater risk for biological impairment, violating West Virginia?s water quality standards.

depcommentDEP did nothing about this, ignoring guidance from the U.S. Environmental Protection Agency. Finally, Appalachian Mountain Advocates sued CONSOL, and won an important settlement in which the company agreed to try to restore the biological integrity of Broadtree Branch, which flows into 20 Mile Creek.

The coal industry realized that this issue could end up being very expensive, so it responded in typical fashion. It didn?t seek ways to mine more responsibly and cause less damage. Instead, it sued to block EPA?s guidance and it convinced a compliant state legislature to pass SB 562, an attempt to weaken those narrative standards by redefining them.

DEP also responded in typical fashion. Every time a water quality standard becomes meaningful, i.e. painful to industry, the agency capitulates and weakens it. SB 562 required DEP?s secretary to rewrite the rules for determining when streams were considered biologically impaired under the narrative standards.

At about the same time, DEP was compiling its biennial list of impaired streams as required by the federal Clean Water Act. Identifying impaired streams is the first step toward taking action to improve water quality. Impaired streams may be subject to Total Maximum Daily Loads that could strictly limit mining permits in order to protect aquatic life.

So DEP decided not to list any new biologically impaired streams ? though at least 173 new streams should have been listed under the regulations currently in place.

DEP is taking this approach despite the fact that the new water quality standard hasn?t been reviewed or approved by EPA as required ? indeed, even though the regulations implementing the new standard haven?t been drafted.

SB 562 specifically states that the new standards shouldn?t be less protective than existing ones, but already it is resulting in less protection for the state?s waters. DEP?s actions will delay protection of impaired streams through the TMDL process for years.

What does this episode illuminate? Simply this: Both the legislative and executive branches of West Virginia government are bending over backwards to protect the coal industry from taking responsibility for the pollution it produces and the damage it causes. Right now, this is saving the coal industry hundreds of millions of dollars.

Understand this: If the industry successfully evades this responsibility, the taxpayers of West Virginia will be left shouldering the enormous cost of cleaning up the mess.

We recently put up a map showing all of the impaired streams in the state in red. The state was blanketed in red, especially the coal fields.

With this attitude on the part of public officials, is it any wonder why?

Radmacher is communications director for Appalachian Mountain Advocates. This is a version of a commentary that originally appeared in The Charleston Gazette.





  1. Tom Rhule says:

    The problem isn’t just the legislature pandering to the coal industry. Consol is now heavily invested in oil and gas production, as are many members of the legislature. Lowering surface water standards may benefit hydrofrackers even more than coal producers, considering the huge amount of water and toxic liquid waste required for each horizontal whell.

Post a comment