West Virginia’s Department of Environmental Protection just announced plans to seek public input on how the agency should enforce a key part of our state’s water quality standards.

But is this all just part of an effort to avoid any federal government crackdown on mountaintop removal, or is WVDEP serious about coming up with a plan to reduce the impacts itself?

WVDEP is going to start accepting public comments on implementation of what’s known as the narrative standard. As we’ve gone over before on Coal Tattoo, that standard prohibits:

… Any other condition that adversely alters the integrity of the waters of the state  … no significant adverse impact to the chemical, physical, hydrologic, or biological components of aquatic ecosystems shall be allowed.

Of course, that standard is one of the major legal triggers the federal Environmental Protection Agency has cited in its efforts to try to force West Virginia regulators and the state’s coal industry to reduce the impacts of mountaintop removal.

WVDEP Secretary Randy Huffman called me this afternoon to tip me off that this formal announcement was coming. You’ll recall that he was nice enough to do the same thing two months ago, when WVDEP first announced plans to come up with a document to guide enforcement of the narrative standard. Oddly, though, Randy told me today that WVDEP is not putting out a proposed guidance document for public review. Instead, WVDEP is just going to ask anyone who is interested to submit ideas for what such a document might eventually say. Randy said:

It’s not a comment period, because it’s not a standards issue.

But, he added:

That seems to be a big gap in the water regulatory program right now. it’s necessary for us to do this to get a hold of our program.

Randy said he doesn’t want stacks of studies, reports or data, but actual suggestions for how to interpret the narrative standard:

I’m not looking for data and reports. I have that. Nor do I intend to debate the pros and cons of coal mining. What I am looking for are well-thought-out ideas on how we can measure aquatic life impacts and tie those impacts back to the problem where we can then fix it, using the tools of the Clean Water Act.

Comments can be sent to WVDEP’s office at 601 57th Street SE
Charleston, WV 25304. Or, you can e-mail them.

Still, why is WVDEP doing this comment period now, rather than drafting its proposed policy and then seeking comment on it?

Well, Randy explained that he was just on a conference call earlier this week with environmental protection officials from 17 other states. They were all worried because of reports out of EPA Region 4 (which includes Kentucky and Tennessee) about a federal report — expected out soon — that describes what the current science says about the levels of water conductivity or salinity that are causing serious damage to aquatic life.

According to Randy, that EPA report was putting the figure at between 280 and 350. Typically, conductivity is measured in terms of micro Siemens per cm. And Randy and other state regulators were none too happy about this EPA finding:

You can’t do anything with that. You can’t clean off a parking lot with that. There is just concern there.

We’ve all been waiting for months for the results of another in-depth EPA examination of mountaintop removal’s impacts. In the meantime, the respected journal Science published a peer-reviewed paper that found the impacts to be “pervasive and irreversible.” And, EPA’s work has apparently actually produced two reports, one a more general examination of mountaintop removal and another more narrow study looking at the conductivity issue.

So it’s a little confusing now for WVDEP to be seeking comment without even giving the public a draft proposal to comment on. And why is WVDEP so focused on the narrative standard, instead of proposing numeric water quality standards that would give the coal industry much more concrete targets? And, why did the WVDEP’s news release try to draw attention away from the coal industry, the clear focus on this problem:

Water quality has become the main topic of conversation across all types of industry, and there is a great deal of debate about what is or should be considered impairment. Our goal is to take into consideration the ideas of others as we develop our plan for implementing and enforcing the narrative standard.

The goal of the as-yet unreleased EPA conductivity study was to figure out what level of pollution from mountaintop removal was harming water quality — so regulators could then set a standard and write permit limits meant to avoid that harm. Why not wait and see what the science says, and write new regulations accordingly?