I am not sure if anyone else saw this, but SB 615, and the comparable SB 562 are on a fast track and are on the calendar for final passage today. These bills could easily reverse our victory before the EQB on the New Hill West permit in Morgantown.
Jim Kotcon
THE STATE JOURNAL:
Bill aims to narrow scope of DEP water pollution permits Posted: Mar 08, 2012 5:57 PM EST Updated: Mar 08, 2012 8:52 PM EST By Pam Kasey The coal industry is backing a bill that would remove a provision in state water pollution discharge permits that requires compliance with all water quality standards. It's a provision the industry says applies, unfairly, only to coal. Although DEP representatives were unavailable to confirm or correct this at the time of this story, a quick review finds it in other water pollution discharge permits as well. Senate Bill 615, amending the state's Water Pollution Control Act, was introduced by Sens. Art Kirkendoll, D-Logan; Mike Hall, R-Putnam; Erik Wells, D-Kanawha; and Ron Stollings, D-Boone. The bill would insert new language into the Water Pollution Control Act stating, essentially, that compliance with effluent limits is compliance with the law. That sounds obvious, but West Virginia Coal Association Vice President Jason Bostic explained the meaning. The way it stands now, a coal mine operator's water pollution permit contains limitations for a number of pollutants. In addition, it includes language stating that, even if the permittee meets the pollution limitations specified in the permit, it also can't violate any other water quality standard. The industry wants that to stop, Bostic said. "That sets us up to get sued for things that aren't a parameter in our permit," he said. "Since they aren't in our permit, we aren't monitoring for them — so how would we know we're violating them?" "We've had notices of intent to sue for high conductivity," Bostic said — a water quality measure for which neither the state nor the federal government has set a water quality standard. The U.S. Environmental Protection Agency has, however, set a controversial benchmark for conductivity as a proxy for the tricky-to-implement biologic component of West Virginia's narrative water quality standard. "In concert with what EPA alleges, these anti-mining folks allege that high conductivity is violating the narrative water quality standards," he said. So a statement in a coal mine operator's water pollution discharge permit requiring the operator to meet not only its specific effluent limitations but also all of the state's other water quality standards is opening the operator to lawsuits. The requirement to meet all water quality standards does appear in other, non-coal water pollution discharge permits. The general permit for sewage systems treating less than 50,000 gallons per day, for example, reads, "The effluent or effluents covered by this permit are to be of such quality so as not to cause violation of applicable water quality standards adopted by the state Environmental Quality Board" — a function taken over by the DEP. A general stormwater construction permit reads, differently but relevantly, "This permit may be re-opened and modified, suspended, revoked and reissued or revoked at any time if information becomes available and demonstrates that the established controls do not attain and maintain the narrative water quality standards …" Bostic expressed further frustration over the fact that the Clean Water Act allows these suits to bypass state permitting and legal authority and go straight to federal court. "We're taking responsibility for the program away from the people of West Virginia and the Legislature and Department of Environmental Protection and putting it in the federal government's hands where it doesn't belong," he said. "It's certainly not supposed to be in front of a federal judge." The goal of the bill, he said, is to bring the coal program into conformity with the federal program and, in his mind, also with the non-coal industrial sector in West Virginia. "We want to get away from what has become a very hazardous situation where you have different rules that apply only to coal mining," he said. The bill will get its second reading on March 9 and will come to vote after its third reading on March 10.
Looks like both of these amendments were adopted. I worry that they restrict our rights to appeal water pollution cases. Jim Kotcon
SB 615 text. 22-11-6 (2) Notwithstanding any rule or permit condition to the contrary, and except for any standard imposed under section 307 of the federal Water Pollution Control Act for a toxic pollutant injurious to human health, compliance with a permit issued pursuant to this article shall be deemed compliance for purposes of both this article and sections 301, 302, 306, 307 and 403 of the federal Water Pollution Control Act. Nothing in this section, however, prevents the director from modifying, reissuing or revoking a permit during its term. The provisions of this section addressing compliance with a permit are intended to apply to all existing and future discharges and permits without the need for permit modifications. However, should any such modification be necessary under the terms of this article, then the director shall immediately commence the process to effect such modifications;
SB 562 text: Article 22-11-7b (f) (1) It is declared to be the public policy of this state that any interpretation and implementation of West Virginia's narrative water quality standards, which have been authorized by the Legislature in a promulgated administrative rule, is the responsibility of the department. It is further declared to be the public policy of this state that the department's interpretation of West Virginia's narrative water quality standards must fully comply with the statement of public policy set forth in section two of this article.
(2) Measuring compliance with the biologic component of WestVirginia's narrative water quality standard requires evaluation of the holistic health of the aquatic ecosystem and a determination that the stream: (i) Supports a balanced aquatic community that is diverse in species composition; (ii) contains appropriate trophic levels of fish, in streams that have flows sufficient to support fish populations; and (iii) the aquatic community is composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach, or, if the assessed reach has insufficient flows to support a fish community, in those downstream reaches where fish are present.
(3) The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary to implement the provisions of this section. (g) The one-half mile zone requirement contained in §7.2.a.2, series two, title forty-seven of the West Virginia Code of State Rules, is not applicable to any stream segment upstream from the intake of a public water supply (Water Use Category A) if the affected water intake owner waives the benefit of the rule in a writing provided to the department. To remain effective, the waiver must be renewed by the downstream water intake owner for each permit renewal of an affected upstream discharger. Any waiver under this subsection may be revoked by the owner of an affected intake upon the provision of written notice to the department. Upon receipt of the notice of revocation, the department shall modify any upstream permit to impose requirements in accordance with the one-half mile zone requirement. Miley Floor Amendment (It is not clear that this language passed. The timeline says it did, but it is not in the engrossed version. I hope it is in there as it helps somewhat.) “Rules promulgated pursuant to this subsection may not establish measurements for biologic components of West Virginia's narrative water quality standards that would establish standards less protective than requirements that exist at the time of enactment of the amendments to this subsection by the Legislature during the 2012 regular session.”
"James Kotcon" jkotcon@wvu.edu 3/9/2012 6:19 PM >>>
I am not sure if anyone else saw this, but SB 615, and the comparable SB 562 are on a fast track and are on the calendar for final passage today. These bills could easily reverse our victory before the EQB on the New Hill West permit in Morgantown.
Jim Kotcon
THE STATE JOURNAL:
Bill aims to narrow scope of DEP water pollution permits Posted: Mar 08, 2012 5:57 PM EST Updated: Mar 08, 2012 8:52 PM EST By Pam Kasey The coal industry is backing a bill that would remove a provision in state water pollution discharge permits that requires compliance with all water quality standards. It's a provision the industry says applies, unfairly, only to coal. Although DEP representatives were unavailable to confirm or correct this at the time of this story, a quick review finds it in other water pollution discharge permits as well. Senate Bill 615, amending the state's Water Pollution Control Act, was introduced by Sens. Art Kirkendoll, D-Logan; Mike Hall, R-Putnam; Erik Wells, D-Kanawha; and Ron Stollings, D-Boone. The bill would insert new language into the Water Pollution Control Act stating, essentially, that compliance with effluent limits is compliance with the law. That sounds obvious, but West Virginia Coal Association Vice President Jason Bostic explained the meaning. The way it stands now, a coal mine operator's water pollution permit contains limitations for a number of pollutants. In addition, it includes language stating that, even if the permittee meets the pollution limitations specified in the permit, it also can't violate any other water quality standard. The industry wants that to stop, Bostic said. "That sets us up to get sued for things that aren't a parameter in our permit," he said. "Since they aren't in our permit, we aren't monitoring for them — so how would we know we're violating them?" "We've had notices of intent to sue for high conductivity," Bostic said — a water quality measure for which neither the state nor the federal government has set a water quality standard. The U.S. Environmental Protection Agency has, however, set a controversial benchmark for conductivity as a proxy for the tricky-to-implement biologic component of West Virginia's narrative water quality standard. "In concert with what EPA alleges, these anti-mining folks allege that high conductivity is violating the narrative water quality standards," he said. So a statement in a coal mine operator's water pollution discharge permit requiring the operator to meet not only its specific effluent limitations but also all of the state's other water quality standards is opening the operator to lawsuits. The requirement to meet all water quality standards does appear in other, non-coal water pollution discharge permits. The general permit for sewage systems treating less than 50,000 gallons per day, for example, reads, "The effluent or effluents covered by this permit are to be of such quality so as not to cause violation of applicable water quality standards adopted by the state Environmental Quality Board" — a function taken over by the DEP. A general stormwater construction permit reads, differently but relevantly, "This permit may be re-opened and modified, suspended, revoked and reissued or revoked at any time if information becomes available and demonstrates that the established controls do not attain and maintain the narrative water quality standards …" Bostic expressed further frustration over the fact that the Clean Water Act allows these suits to bypass state permitting and legal authority and go straight to federal court. "We're taking responsibility for the program away from the people of West Virginia and the Legislature and Department of Environmental Protection and putting it in the federal government's hands where it doesn't belong," he said. "It's certainly not supposed to be in front of a federal judge." The goal of the bill, he said, is to bring the coal program into conformity with the federal program and, in his mind, also with the non-coal industrial sector in West Virginia. "We want to get away from what has become a very hazardous situation where you have different rules that apply only to coal mining," he said. The bill will get its second reading on March 9 and will come to vote after its third reading on March 10.
From WV Highlands Conservancy mining committee chairwoman, Cindy Rank:
"Well, the chickens have come home to roost much faster than I expected......
Two of our most recent NOIs have been officially challenged using these two new pieces of legislation.... [the court documents were probably written well before the ink was dry on the legislation itself....]
I'm not sure how all of this impacts our and Sierra's work on the New Hill permits up north that Jim mentions in particular, but it certainly applies to our legal actions based on conductivity and WET testing from Clay and Nicholas on south into the heavy mtr areas.....
Legal beagles are studying all right now.... and who knows what role EPA will have to or want to play in all of this..... or how the Court will view this state legislation .... too many lingering unanswered state and federal initiatives and policy decisions are intertwined in all of this..... just the kind of situation the coal industry likes to jump on.... stir the pot, make what is already confusion into a tangled web of obfuscation........"
Cindy R. ----- Original Message ----- From: James Kotcon To: ec@osenergy.org ; James Kotcon Cc: peter.morgan@apps.sierraclub.org ; aaron.isherwood@sierraclub.org ; derek_teaney@yahoo.com ; Joe Lovett ; PeterMorgan@rx1.citynet.net Sent: Sunday, March 11, 2012 3:25 PM Subject: [EC] Text of Water bills passed
Looks like both of these amendments were adopted. I worry that they restrict our rights to appeal water pollution cases. Jim Kotcon
SB 615 text. 22-11-6 (2) Notwithstanding any rule or permit condition to the contrary, and except for any standard imposed under section 307 of the federal Water Pollution Control Act for a toxic pollutant injurious to human health, compliance with a permit issued pursuant to this article shall be deemed compliance for purposes of both this article and sections 301, 302, 306, 307 and 403 of the federal Water Pollution Control Act. Nothing in this section, however, prevents the director from modifying, reissuing or revoking a permit during its term. The provisions of this section addressing compliance with a permit are intended to apply to all existing and future discharges and permits without the need for permit modifications. However, should any such modification be necessary under the terms of this article, then the director shall immediately commence the process to effect such modifications;
SB 562 text: Article 22-11-7b (f) (1) It is declared to be the public policy of this state that any interpretation and implementation of West Virginia's narrative water quality standards, which have been authorized by the Legislature in a promulgated administrative rule, is the responsibility of the department. It is further declared to be the public policy of this state that the department's interpretation of West Virginia's narrative water quality standards must fully comply with the statement of public policy set forth in section two of this article. (2) Measuring compliance with the biologic component of West
Virginia's narrative water quality standard requires evaluation of the holistic health of the aquatic ecosystem and a determination that the stream: (i) Supports a balanced aquatic community that is diverse in species composition; (ii) contains appropriate trophic levels of fish, in streams that have flows sufficient to support fish populations; and (iii) the aquatic community is composed of benthic invertebrate assemblages sufficient to perform the biological functions necessary to support fish communities within the assessed reach, or, if the assessed reach has insufficient flows to support a fish community, in those downstream reaches where fish are present. (3) The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary to implement the provisions of this section.
(g) The one-half mile zone requirement contained in §7.2.a.2, series two, title forty-seven of the West Virginia Code of State Rules, is not applicable to any stream segment upstream from the intake of a public water supply (Water Use Category A) if the affected water intake owner waives the benefit of the rule in a writing provided to the department. To remain effective, the waiver must be renewed by the downstream water intake owner for each permit renewal of an affected upstream discharger. Any waiver under this subsection may be revoked by the owner of an affected intake upon the provision of written notice to the department. Upon receipt of the notice of revocation, the department shall modify any upstream permit to impose requirements in accordance with the one-half mile zone requirement.
Miley Floor Amendment (It is not clear that this language passed. The timeline says it did, but it is not in the engrossed version. I hope it is in there as it helps somewhat.)
“Rules promulgated pursuant to this subsection may not establish measurements for biologic components of West Virginia's narrative water quality standards that would establish standards less protective than requirements that exist at the time of enactment of the amendments to this subsection by the Legislature during the 2012 regular session.”
"James Kotcon" jkotcon@wvu.edu 3/9/2012 6:19 PM >>>
I am not sure if anyone else saw this, but SB 615, and the comparable SB 562 are on a fast track and are on the calendar for final passage today. These bills could easily reverse our victory before the EQB on the New Hill West permit in Morgantown.
Jim Kotcon
THE STATE JOURNAL:
Bill aims to narrow scope of DEP water pollution permits
Posted: Mar 08, 2012 5:57 PM EST Updated: Mar 08, 2012 8:52 PM EST
By Pam Kasey
The coal industry is backing a bill that would remove a provision in state water pollution discharge permits that requires compliance with all water quality standards.
It's a provision the industry says applies, unfairly, only to coal. Although DEP representatives were unavailable to confirm or correct this at the time of this story, a quick review finds it in other water pollution discharge permits as well.
Senate Bill 615, amending the state's Water Pollution Control Act, was introduced by Sens. Art Kirkendoll, D-Logan; Mike Hall, R-Putnam; Erik Wells, D-Kanawha; and Ron Stollings, D-Boone.
The bill would insert new language into the Water Pollution Control Act stating, essentially, that compliance with effluent limits is compliance with the law.
That sounds obvious, but West Virginia Coal Association Vice President Jason Bostic explained the meaning.
The way it stands now, a coal mine operator's water pollution permit contains limitations for a number of pollutants. In addition, it includes language stating that, even if the permittee meets the pollution limitations specified in the permit, it also can't violate any other water quality standard.
The industry wants that to stop, Bostic said.
"That sets us up to get sued for things that aren't a parameter in our permit," he said. "Since they aren't in our permit, we aren't monitoring for them — so how would we know we're violating them?"
"We've had notices of intent to sue for high conductivity," Bostic said — a water quality measure for which neither the state nor the federal government has set a water quality standard. The U.S. Environmental Protection Agency has, however, set a controversial benchmark for conductivity as a proxy for the tricky-to-implement biologic component of West Virginia's narrative water quality standard.
"In concert with what EPA alleges, these anti-mining folks allege that high conductivity is violating the narrative water quality standards," he said.
So a statement in a coal mine operator's water pollution discharge permit requiring the operator to meet not only its specific effluent limitations but also all of the state's other water quality standards is opening the operator to lawsuits.
The requirement to meet all water quality standards does appear in other, non-coal water pollution discharge permits.
The general permit for sewage systems treating less than 50,000 gallons per day, for example, reads, "The effluent or effluents covered by this permit are to be of such quality so as not to cause violation of applicable water quality standards adopted by the state Environmental Quality Board" — a function taken over by the DEP.
A general stormwater construction permit reads, differently but relevantly, "This permit may be re-opened and modified, suspended, revoked and reissued or revoked at any time if information becomes available and demonstrates that the established controls do not attain and maintain the narrative water quality standards …"
Bostic expressed further frustration over the fact that the Clean Water Act allows these suits to bypass state permitting and legal authority and go straight to federal court.
"We're taking responsibility for the program away from the people of West Virginia and the Legislature and Department of Environmental Protection and putting it in the federal government's hands where it doesn't belong," he said. "It's certainly not supposed to be in front of a federal judge."
The goal of the bill, he said, is to bring the coal program into conformity with the federal program and, in his mind, also with the non-coal industrial sector in West Virginia.
"We want to get away from what has become a very hazardous situation where you have different rules that apply only to coal mining," he said.
The bill will get its second reading on March 9 and will come to vote after its third reading on March 10.
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