Appalachian Mountain Advocates, Sierra Club, Appalachian Voices and a number of state and regional environmental groups have joined together to petition the U.S. Environmental Protection Agency to acknowledge the failure of several Appalachian states to administer and enforce the National Pollutant Discharge Elimination System (NPDES) program.
The petitions ask EPA to withdraw the authorization of these states to run their own NPDES programs and take over enforcement of this vital program.
The groups filed petitions in West Virginia, Kentucky and Virginia. In early January, the groups filed suit against EPA for failing to intervene in West Virginia and Kentucky.
In West Virginia, Appalmad, Appalachian Voices and Sierra Club were joined by the West Virginia Highlands Conservancy and the Ohio Valley Environment Coalition in their petition to the EPA.
The petition highlights the many failures of the West Virginia Department of Environmental Protection to administer its NPDES program. WVDEP?routinely issues permits for mining operations that are likely to cause or contribute to violations of the state?s water quality standards of pollutants that don?t have numeric standards. These permits lead directly to damaged streams that suffer biological harm from the pollution.
In addition, WVDEP has failed?to issue permits for point-source discharges at abandoned mine land sites or at sites previously permitted by the West Virginia Surface Mining and Reclamation Act that have had their permits and bonds released.
Though these sites continue to produce polluted mine drainage in violation of water quality standards, DEP routinely releases bonds and permits, allowing hundreds of unpermitted discharges from valley fills across the state.
The agency is also issuing illegal permits to itself for point-source discharges at bond-forfeiture sites it is responsible for. These permits do not contain effluent limits on total dissolved solids, sulfates and conductivity that would ensure the state?s water quality standards are not violated.
This is the second time since 2009 that EPA has been petitioned to take over West Virginia?s NPDES program.
In 2010, Appalachian Mountain Advocates, Sierra Club, Kentuckians for the Commonwealth and Public Justice petitioned to have EPA take over Kentucky’s NPDES program, noting that the Kentucky Division of Water (KDOW) had failed to develop protective water quality standards, assure adequate assessment of the current condition of the state?s waters, comply with EPA guidelines on the development of Total Maximum Daily Load (TMDL) programs and issue permits with effluent limits that would protect Kentucky?s waters.
Recently, Sierra Club, Appalachian Mountain Advocates and Appalachian Mountain Advocates submitted another petition to the EPA, citing?Kentucky’s changed in its selenium standard from a water-based limit to a fish tissue-based limit. EPA allowed the change on the condition that permits would be considered in violation if the prior water-based limits were exceeded and insufficient fish samples could be obtained. That is not, though, how the standard works. Instead, KDOW allows samplers?have been instructed to keep moving down the receiving stream until enough fish tissue is obtained, even if that means going into the next receiving stream. KDOW’s approach allows fish to be completely eliminated from a direct receiving stream without finding any violation.
Kentucky, like West Virginia, has failed to issue NPDES permits for point-source discharges from bond-released sites. It has also authorized discharges from?abandoned mine lands under a general permit that includes no enforceable pollution limits.
In Virginia, Southern Appalachian Mountain Stewards joined the petition asking EPA to take over the NPDES program from the Virginia Department of Mines, Minerals and Energy (DMME), the Virginia Department of Environmental Quality and the State Water Control Board.
Virginia?s issues are numerous. It routinely approves incomplete permit applications. It doesn?t consider existing water quality when reissuing permits. It uses ?best management practices? instead of numeric effluent limits to address point-source pollution from active mining operations in watersheds that are supposed to be protected by Total Maximum Daily Load limits.
Finally, Virginia actually entered into a settlement agreement with the Virginia Mining Issues Group in which Virginia?s regulatory agencies promised they would take no action when permittees exceed their TMDL wasteload allocations.
Virginia?s failure is easy to document. In the coalfield counties, streams under DMME?s TMDL protection continue to be impaired, some even after a decade of TMDL protection.
In West Virginia, Kentucky and Virginia, state regulators have failed in their duty to enforce the Clean Water Act. By law, EPA should rescind authorization for all three states and take over their programs.