WVDEP’s ‘Don’t ask, don’t tell’ policy on coal slurry

May 29, 2009 by Ken Ward Jr.


Kenny Stroud and his son ponder their contaminated water in their Rawl, Mingo County, W.Va. home.  Photo by Vivian Stockman.

Since WVDEP’s drop of its long-awaited coal-slurry injection study after the close of business on Thursday, I’ve had time to read the entire report. And this is what I’ve come up with so far:

secretary-randy-huffman-portrait_small.jpgDEP  Secretary Randy Huffman says his agency doesn’t have enough information on what water quality was like before companies started pumping this coal waste underground to say for sure if the slurry impacted that water quality.

Here are a few of the quotes:

— …There are insufficient surface and groundwater monitoring sample sites to determine effects from slurry injection on surface and groundwater.

Most of the assessment sites lacked detailed information on mine pool conditions and adequate monitoring of the quantity and quality of the mine pool associated with the injection activities.

— Due to insufficient groundwater characterization and monitoring by the operators, definitive conclusions could not be drawn on the extent of the effects of slurry injection on the surrounding groundwater regime.

— (And my favorite) Operators did not conclusively demonstrate that, when slurry is injected into abandoned underground mines, it remains contained and the surrounding hydrologic regime is not adversely affected.

Some of this seems like common sense … I mean, if you want to know if this stuff damaged the water, you need to know what the water was like before the slurry got injected underground. And, you need to monitor the water quality all along the way, right?

OK. So why didn’t WVDEP make the operators do that?

The report doesn’t say. But it makes it clear that WVDEP had the authority to do so, if it had wanted to … Take a look at page 15. It’s right there. “The UIC regulations at CSR 47-13-13.7 … allow the WVDEP to impose conditions in permits on a case-by-cases basis to assure compliance with the Federal Safe Drinking Water Act and the State Water Pollution Control Act and rules.”

What kind of conditions? Well, for one thing, the WVDEP could have required monitoring and reporting requirements.

And what’s more, the existing regulations show that WVDEP has this whole thing backwards. The state doesn’t have to prove that slurry injection is damaging water in order to do something. Rather, the regs put the ball in the industry’s court. CSR 38-2-15.5.e.2 provides that discharges into underground mine workers are prohibited “unless the operator demonstrates that such activities will not cause, result in, or contribute to a violation of water quality standards and effluent limitations both on or outside the permit area.”

So, if WVDEP found in this study that it doesn’t have enough information to say if slurry is damaging water supplies, then how in the world could operators have made the showing required under that regulation?

A couple of other interesting things …

First of all, in our print edition this morning, I wrote the WVDEP had not said how long the moratorium on new slurry injection permits would last.  Late last night, I got an e-mail message from WVDEP spokesman Tom Auise, saying my story was wrong, and that the DEP news release said it would last for two years. I re-read the news release, and it said no such thing.

This morning, I had another e-mail from Tom, saying that WVDEP had originally posted on its Web site a news release including the two-year limit on the moratorium. But, he said, that information had later been deleted, because agency officials had decided not to go with a two-year moratorium.

Later today, Tom sent me this explanation  of the confusion:

“Originally, the idea was for a two-year moratorium but we ultimately decided that was just an arbitrary period of time that didn’t bear any relationship to environmental protection issues.

“Instead, we went with an indefinite moratorium to give us enough time to implement the study’s recommendations. Once we have the program in better condition and the study’s recommendations are implemented to the satisfaction of the DEP, then consideration will be given to whether the moratorium should be lifted.”

Second, the WVDEP study makes it clear that coal slurry is migrating into underground water …    See page 8, for example:

Certain constituents, such as alkalinity, Total Dissolved Solids, sulfates, and some organics, had migrated from the slurry into the mine pool that received the injection.

Or, see page 32:

A comparison of the mine pools in adjacent deep mines where slurry did not occur supports the conclusion that injection activities impact mine pool water quality. Specifically, the water of the mine pool shows increased concentrations of total dissolved solids, alkalinity, and sulfates.

Or, page 33:

Two of the four sites showed changes in water quality of the mine pool receiving injection. Certain constituents migrated from the slurry into the mine pool.

But again, WVDEP’s “Don’t ask, don’t tell” policy:

…Migration of the constituents from the mine pool to the surrounding groundwater was difficult to determine due to a lack of background information prior to injection and appropriate monitoring of changes by the operator.

8 Responses to “WVDEP’s ‘Don’t ask, don’t tell’ policy on coal slurry”

  1. John Balasko says:


    Are you sure that Mr. Stroud and his son had enough samples to know that their water was contaminated? Did he have a sample of the water from 10 years ago?

    The scientific method comes into play when it is convenient otherwise it is ignored.

    Keep up the good work!

  2. Chuck Nelson says:

    We as citizens, living on our well water for years, are smart enough to know when the quality of our water changes. And we as citizens know that when our water turns black, and has coal fines that settle in the bottom of a glass, that something is definitely wrong. And connect that with all the serious illness that has struck these small communities ,where we know injections have been ongoing for years, then link this with the scientific studies that have been done in these effected areas, it’s not hard to connect the dots. I applaud the DEP, that they now not sure that injections is such a good idea. Benny Campbell, a DEP inspector told me this has been one of the worst decision the state agency has ever allowed to happen. It’s this simple, coal companies can well afford the few cents on a ton of coal to insure the safety of the citizens of West Virginia. This would eliminate not only the use of injections, but also of over 100 impoundment ponds which is also a major threat to communities that live anywhere near these toxic waste ponds. That’s a very small price to pay to insure the public’s safety

  3. offroute says:

    Thanks for this very informative post. Here’s the thing i don’t get:

    UIC of coal slurry requires a Class 5 permit under CSR Rule 47. Class 5 permits are issued “by rule.” Sections 13.2, 13.2.a.4. If i read this right, permits “by rule” do not require operator to demonstrate anything at all regarding safety of its operation. The closest they get is 12.2.a.4: descriptoin of “the environmental and economic consequences of well disposal.. .”

    Rather, the DEP can take corrective action if it “gains knowledge of a Class 5 well which presents a significant risk to the health of persons . . .” See 12.3 and also 13.1.d of Rule 47.

    See? So it looks like the burden is on DEP under this rule, not the operator. And this despite CSR 38, which you cite above, and which is cited in report.

    This burden-shifting business is really confusing, but it seems to me to be critical when you’re talking about an understaffed environmental regulatory agency. I mean really it seems this rule 47 creates an almost impossible enforcement burden for DEP.

    i’m probably missing something here. And it doesnt’ help that Section 13.23 of Rule 47 creates a great big confidentiality loophole for any permit or application info submitted by operator.

    keep up the good work.

  4. Beverly Walkup says:

    When are the people of West Virginia going to wake up and realize that everyone deserves clean safe water? Water is more inportant than coal–always has been and always will be.
    It is time the people of West Virginia demand that the DEP do the job we are paying them to do–protect us from this type of pollution.

  5. Lewis Baker says:

    If WV DEP hasn’t had clear cut regulations or sufficient staffing for the Underground Injection Control program to safeguard injection of coal slurry, then what is to insure this same UIC program can safeguard the injection of CO2 ?

    Injection of CO2 is being pushed politically as a way to keep burning coal at power plants, and therefor save the coal industry. But, CO2 would no doubt be much more difficult and expensive to monitor, and potentially much more harmful if it doesn’t stay put.

    Are the UIC regualtions being rewritten ? Shouldn’t there be a moratorium on injections of either waste by-product until strong new regs and a sufficiently robust staff are in place ?

  6. […] West Virginia’s ‘Don’t Ask, Don’t Tell’ Policy on Coal Slurry (Charleston Gazette) […]

  7. Prentergirl says:

    As a resident of Prenter area for 30 yrs I think there should be a permanent moratorium on all injections. They cannot take it back once it’s in the water supply and believe me it’s in there.

  8. ArtRevolt says:

    A new artshow at ReStore in Charleston deals with real WV landscapes and destruction.

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