Coal Tattoo

WVDEP wants 3 1/2 years (!?!) to give itself a permit


A month ago, U.S. District Judge Irene M. Keeley ordered the Manchin administration to obtain water pollution permits for the abandoned mine sites it maintains under the West Virginia Department of Environmental Protection’s Special Reclamation Program.

Reading DEP Secretary Randy Huffman’s recent response, I have to wonder if Judge Keeley knew what she was getting herself into.

secretary-randy-huffman-portrait_small.jpgHuffman has asked for 42 months — that’s right, 3 1/2 years — to obtain these permits. But it’s not clear from agency lawyer Heather Connolly’s Monday court brief if even that is going to be enough time for DEP to act:

It is extremely difficult for WVDEP to predict, with any accuracy, how much time will be needed to apply for, and obtain NPDES permits for all forfeiture sites needing water treatment.

While it may end up sounding like a bizarre bit of bureaucratic nonsense — come on, DEP giving itself a permit? — the issue in the federal court lawsuit here is pretty significant for the state’s future water quality, and especially for who ends up paying the tab for the damage from past coal mining abuses.

As  I wrote last month when Keeley first issued her ruling,  this case involves long-standing problems with the Special Reclamation Program, and the monetary fund that supports that program:

The program, required by federal law, aims to clean up coal mines abandoned since passage of the 1977 Surface Mining Control and Reclamation Act. Mines abandoned before then are covered by a separate program, also mandated by the 1977 law and funded by coal industry taxes.

Over the years, the program has never had enough money. Thousands of acres of abandoned mines have sat unreclaimed. Hundreds of polluted streams went untreated.

Historically, the fund has been short of money because coal operators had not posted reclamation bonds sufficient to cover the true cost of mine cleanups at sites they abandon. A state tax on coal production was never set high enough to cover the difference.

Today, DEP operates treatment systems at dozens of abandoned mine sites. But the agency does not reduce the pollution from those sites enough to meet water quality limits, and does not obtain Clean Water Act permits for the site discharges. [For more background, see here, here and here] 

Two years ago, the West Virginia Highlands Conservancy and the West Virginia Rivers Coalition went to court to try to change this DEP policy. And, so far, those groups have pretty much cleaned DEP’s clock in court. Technically, the ruling applies only to 18 abandoned mine sites that are at issue before Keeley. But, as DEP officials admit, the practical matter is that the agency is going to have to get permits for many of the 500 sites currently in the Special Reclamation Program, and at least for the 170 where water discharges are currently being treated. For the environment, this means a win: DEP will have to improve the treatment at all of those sites so that the discharges actually meet some modern pollution limits.

What’s happening now is that Keeley has asked both sides to submit court briefs proposing some deadlines for how long DEP has to act.

So what did DEP propose?

Well, first of all, remember that Huffman has promised to appeal Keeley’s ruling. That alone, the agency says, is enough reason to delay any action:

At the very earliest, this matter would still be under appeal during the current 2009 legislative session, and would not be taken up until the 2010 legislative session commencing in January 2010 unless a special session was called. WVDEP has no ability to call a special session of the state legislature.

The appeal issue aside, DEP officials have plenty of other reasons for why they need until at least August 2012 to get these permits. Here are just a few of them:

1. It will be necessary for WVDEP to obtaining <sic> professional engineering and environmental consulting services to survey the needs of each forfeited site in order to determine the required background data necessary to formulate a groundwater protection plan and select appropriate treatment technologyin <sic> accordance with applicable NPDES limits. Likewise, based on the treatment technology chosen, realistic cost estimates must be completed to allow WVDEP to advise the Special Reclamation Advisory Council (who will then advise the state legislature) of the amount of money needed to pay for the chosen treatment technology so that fiscally sound budget decisions can be made.

2. Once background data, treatment technology, and funding hurdles are cleared, the applications themelves must be filled out and submitted to the WV Division of Mining & Reclamation for processing … These applications are lengthy, complex and time consuming, requiring a thorough knowledge of conditions on the ground as well as the background water quality data. WVDEP does not currently have the additional professionals on staff to complete this work, and those services must be hired through the state procurement process.

3. …Specifications must be written for the necessary professional environmental service contracts needed to gather baseline data, determine the scope of treatment, and write the permit applications for each site, the assumption being that each site treating water will have multiple discharge outfalls … Specifications for these professional services can likely be written by WVDEP in 60 to 60 days <sic>, but it is dependent on the state purchasing division to determine the speed at which contracts for goods and services are completed … Each state purchasing function is required to use the open market and a competitive bidding process. As legislatively mandated, all contracts in excess of twenty-five thousand dollars must be done through the Department of Administration’s director of the state’s Purchasing Division.

Reading the environmental groups’ recent court filing, I have to wonder if they realized they were opening up such a big can of worms…citizen group lawyers — ever the optimists — suggested that DEP be given six months, which is about the average time it takes for the agency to review and issue a water pollution permit:

The main steps in obtaining an NPDES are: filing the permit application, processing the application and issuing a draft permit, providing public notice and a 30-day comment period on the draft permit, and issuing the final permit.

WVDEP’s NPDES regulations require the applicant to provide information on, among other things, the discharge location, flow rates, sources of pollution, treatment systems and effluent characteristics.

Because WVDEP has already been managing and monitoring these sites for years, all or most of this data should be readily available.