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This article originally provided by The Charleston Gazette

EPA takeover sought for state's water program

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CHARLESTON, W.Va. -- West Virginia regulators have allowed a "complete breakdown" of their water pollution control program, and federal officials should seize permitting and enforcement duties from the state Department of Environmental Protection, a coalition of environmental groups said Wednesday.

In a formal petition, the Sierra Club and three other groups urged EPA to take over West Virginia's handling of the Clean Water Act's National Pollution Discharge Elimination System, or NPDES.

The petition focuses on DEP's program for mining, but also targets problems in non-mining water quality enforcement and permitting. Among other things, it cites the state's granting of broad compliance waivers, the Legislature's weakening of key pollution rules, and a long-standing lack of action by DEP on permit limit violations by coal operators.

"The state's capitulation to the industries it is obligated to regulate under the Clean Water Act and its resulting failure to enforce or maintain its NPDES program leave EPA no choice but to withdraw its approval of that program," said the petition, signed by citizen group lawyers Joe Lovett, Derek Teaney and Aaron Isherwood.

DEP Secretary Randy Huffman said Wednesday he had not yet seen the petition. But he joked that Obama administration efforts to toughen permit reviews for mountaintop removal already comes close to an EPA takeover.

"If you've read their Memorandum of Agreement, it looks like a pretty strong step in that direction already," Huffman said following a legislative meeting at the Capitol.

EPA officials could not immediately be reached for comment on the petition. But the EPA announcement Huffman referred to did say that federal officials plan to "improve and strengthen oversight" of state water pollution control programs.

Under the federal Clean Water Act, states can seek EPA approval to operate their own water pollution control programs. This allows state regulators to handle water pollution permitting and enforcement.

But EPA is required to make sure states are doing a good job, and the law gives citizens the ability to petition EPA to take over programs if states are not doing their job. EPA is required to investigate such petitions and respond.

Among the DEP problems cited in the citizen group petition:

The state's failure to institute pollution permits and set discharge limits at the abandoned mine sites where DEP handles treatment of acid mine drainage. Earlier this year, a federal judge ordered DEP to begin taking those actions, but Huffman has indicated DEP plans to appeal.

| DEP repeatedly has issued permits to mining operators that did not include discharge limits for toxic selenium, despite evidence that selenium was likely to be emitted by the mining -- and warnings from top scientists that previous selenium pollution was causing deformed fish.

| For years, DEP officials did not look at monthly discharge reports submitted by mine operators. The state's failure to act prompted EPA to sue Massey Energy for thousands of pollution violations, and win a record $20 million settlement from the company. Since then, DEP has entered into a series of "egregious and inadequate" settlements with coal operators, as part of the industry's effort to avoid further EPA lawsuits or citizen enforcement suits.

Along with DEP, the citizen group petition also cites problems with the state Environmental Quality Board, which hears appeals of DEP decisions on permitting and enforcement matters.

For example, the petition says the EQB has wrongly ruled -- in violation of EPA guidelines -- that water pollution permit writers must consider potential compliance costs when they formulate discharge limits. The petition also says the board wrongly ruled that DEP does not have to follow federal Clean Water Act guidelines such as the one that prohibits permit limits that would "backslide," or allow water quality to get worse.

The petition also says that the DEP, the EQB and the Legislature routinely make permit and water quality rule changes without allowing public input, as required by EPA.

"We take this action with great reluctance and in utter frustration," said Cindy Rank, mining chairwoman for the West Virginia Highlands Conservancy. "For decades, we've participated in state-focused actions to assist, cajole, force and demand improvements in the West Virginia Department of Environmental Protection's handling of the NPDES permitting program.

"We can no longer stand by and watch while more and more of our streams are slowly and irreversibly degraded by inadequate permitting, lack of enforcement, and apparent ignorance or disregard for the law."

Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.

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