Environmentalists File Petition to Revoke State Water Permitting Program; War on Coal Will Now Impact All Permit Holders
On June 17, 2009, the Sierra Club, the West Virginia Highlands Conservancy, Coal River Mountain Watch, and the Ohio Valley Environmental Council filed a petition with the United States Environmental Protection Agency (USEPA) requesting that it begin formal proceedings to withdraw West Virginia's state water permitting program. There has been no formal response from the USEPA to the petition, but should the federal agency take steps to withdraw the West Virginia permit program, the costs of such a decision in terms of efficiency and actual dollars could be devastating.
Currently, discharge permits in West Virginia are issued by the West Virginia Department of Environmental Protection (WVDEP) pursuant to the terms of a Memorandum of Understanding between the state and federal government. Withdrawal of the West Virginia program would mean permittees would have to file permit requests with the USEPA.
The filing is yet another step by environmental groups in their efforts to shutter the coal industry or make the cost of operating in Appalachia such that coal operators will take operations to other parts of the United States or overseas, costing the state and counties millions in tax revenue and potentially devastating employment and local businesses in coal-dependent counties.
This new attack will also spill over directly into the everyday lives of West Virginians should these environmental groups be successful in their attempts to have the state permitting program withdrawn. If successful, permits for activities such as the installation of home aeration units and permits to disturb land in excess of one acre would technically require federal approval, as would certain authorizations to obtain expanded public sewer service or develop real estate.
The petition sets forth a plethora of complaints centering mostly upon, but not only, the issuance and enforcement of coal mining or coal-related permits in West Virginia. Longstanding issues surrounding selenium and other difficult to treat substances are at the heart of the petition, including whether economic and technological feasibility concerns may be taken into account when addressing rigid command and control requirements.
The petition alleges that permits issued by the WVDEP, particularly those issued to coal mining operations, contained improper or lax environmental controls and limitations, and further, once issued, the WVDEP failed to provide for proper enforcement of these permits. It should be noted that the very terms and conditions of the permits of which these environmental groups now complain were also approved or not objected to by USEPA pursuant to the Memorandum of Understanding. Further, there is no mention that both federal and state regulators and the industry have been working in a cooperative effort to resolve outstanding compliance issues.
Armando Benincasa
707 Virginia Street E.
Charleston, WV 25301
PO Box 1588
Charleston, WV 25326-1588
Phone (304) 353-8000
armando.benincasa@steptoe-johnson.com
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