A coal mine pollutant discharge rule change proposed by the Department of Environmental Protection would remove from state law a measure requiring coal mine facilities to meet not only their specifically permitted effluent limitations but all of the state's water quality standards.
The proposed change would affect 47CSR30, the WV/NPDES Rule for Coal Mining Facilities.
Subdivision 5.1.f of the rule starts, "The discharge or discharges covered by a (water pollution discharge) permit are to be of such quality so as not to cause violation of applicable water quality standards …"
To that subdivision, the proposal would add a new sentence:
However, … except for any toxic effluent standards and prohibitions imposed under (Clean Water Act) Section 307 for toxic pollutants injurious to human health, compliance with a permit during its term constitutes compliance for purposes of enforcement with CWA Sections 301, 302, 306, 307, 318, 403, and 405 and Article 11.
The operative statement is, "compliance with a permit constitutes compliance."
It sounds obvious, but West Virginia Coal Association Vice President Jason Bostic explained the meaning of it to The State Journal when Senate Bill 615 mandating the change was introduced during the 2012 regular legislative session.
The way it stands now, a coal mine operator's water pollution discharge permit specifies limitations for a number of pollutants. In addition, it requires 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," Bostic said.
If a coal mine operator's water pollution discharge permit requires the operator to meet not only its specific effluent limitations but also all of the state's other water quality standards, he said, it opens the operator to lawsuits.
DEP is taking comments now and requests that comments be limited to the rule changes. Written comments may be mailed to the Public Information Office at DEP Headquarters, 601 57th St., S.E., Charleston, W.Va., 25304. Comments also may be e-mailed to: DEP.Comments@wv.gov.
In addition, a public hearing is scheduled for 6 p.m. on Aug. 7 in the Coopers Rock Conference Room at 601 57th Street , S.E. The comment period will end at the conclusion of the public hearing.
The proposed rule may be downloaded from the DEP website.
The change to the WV/NPDES Rule for Coal Mining Facilities is one of four rules or sets of rules DEP proposes for the coming legislative session, for each of which a public hearing is scheduled in Charleston in late July or early August.
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