Do we need to get President Obama off our backs?

January 29, 2013 by Ken Ward Jr.

One of the tenets of the “War on Coal” campaign is that coal states like West Virginia need desperately to get President Obama, the U.S. Environmental Protection Agency, and other federal regulators off our backs. Is this true?

Well, consider the story we ran in Sunday’s Gazette-Mail, which details a new notice of intent to sue filed with the U.S. Environmental Protection Agency by the Sierra Club, the West Virginia Highlands Conservancy, and the Ohio Valley Environmental Coalition:

National and state citizen groups are threatening to sue the U.S. Environmental Protection Agency for not stepping in to force West Virginia regulators to clean up hundreds of polluted streams.

On Friday, lawyers for the Sierra Club, the West Virginia Highlands Conservancy and the Ohio Valley Environmental Coalition sent their formal notice of intent to sue to EPA headquarters in Washington.

Technically, the threatened suit focuses on EPA’s failure to act within the required 30 days to approve or reject the state Department of Environmental Protection’s list of polluted streams that need cleaned up.

But the suit brings to light a simmering controversy over DEP not including hundreds of streams on that list, based largely on a coal industry-backed bill passed during last year’s legislative session.

The bill, signed by Gov. Earl Ray Tomblin, ordered DEP to abandon its existing methods of measuring stream health and come up with a new set of rules to define when streams are considered biologically impaired. DEP has yet to write those rules, and agency officials declined to add to last year’s cleanup list hundreds of streams that might otherwise have been included.

“We need someone to call a stream polluted when it is, and if the West Virginia DEP won’t do it, then the EPA must,” said Jim Sconyers of the state Sierra Club chapter.

As explained in a news release from the citizen groups:

The Clean Water Act (section 303(d)) requires states to periodically submit lists of polluted waterways to the EPA, which then has 30 days to review the lists. West Virginia’s most recent list failed to include numerous streams that are known to be highly polluted, mainly from mountaintop removal coal mining. January 22, 2013 marked 30 days since West Virginia submitted the list, and the EPA has not rejected it.

The deficient list of polluted waterways stems from the West Virginia legislature’s recent attempts to change the state’s water quality standards. The state formerly used scientific surveys of aquatic insects to determine which streams are biologically impaired. Now, because of the legislature’s actions, the state claims that it must develop new methods for determining impairment. Rather than use the previous assessment method in preparing the updated list of impaired streams, the state opted to not conduct any assessment at all. Had the state used its previous method, it would have identified an additional 173 streams as impaired. And had the state used the method directed by the EPA, it would have identified 546 streams as impaired.

In the notice letter, citizen group lawyers Joe Lovett and Mike Becher say that WVDEP “was brazen in its refusal to comply,” but that EPA responded with only a request to have a conference call with state officials. Commented Lovett and Becher:

Such a weak response is not permitted by the Clean Water Act. EPA’s must assert its authority in the face of WVDEP’s intransigence; further appeasement will only encourage more defiance by WVDEP.

Keep in mind that this threatened suit against EPA is hardly the only recent example where federal officials haven’t exactly been all over the state to enforce environmental and public health protections. Take another legal action also announced this week by Earthjustice:

Today a broad coalition of citizen and environmental groups reopened litigation against the Department of Interior for its removal of a key protection for streams against mountaintop removal mining—the “Stream Buffer Zone Rule.” The Bush administration removed this protection through a midnight rulemaking in 2008, and the Obama administration agreed the Bush administration’s action was unlawful. But the Interior Department has since failed to undo the Bush administration’s rulemaking by the deadline it agreed to.

The Bush administration repealed the 25-year-old Stream Buffer Zone Rule just before leaving office, permitting widespread dumping of mining waste in Appalachian waterways. In the early days of the Obama administration, the groups put the lawsuit on hold based on the administration’s promise to replace the harmful Bush rule by 2012. Because the administration failed to live up to its agreement to revoke the Bush rule and issue a new stream protection rule, the groups are returning to court to restore protections for Appalachian communities and streams.

Or, read the State Journal report that Taylor Kuykendall put together about the long-standing problem of staffing shortages at WVDEP, as outlined in the latest U.S. Office of Surface Mining report on the state’s mining enforcement practices:

A review from a federal agency expresses concern that, among other issues, the state environmental agency is facing ongoing staffing issues.

The annual evaluation of the West Virginia Department of Environmental Protection’s regulatory and abandoned mine reclamation program by the Office of Surface Mining Reclamation and Enforcement discusses the problem of staffing. According to the report, in 2012, the WVDEP not only had fewer full-time positions, but also had 34 vacancies.

Of those vacancies, 65 percent were in permitting and inspection and enforcement divisions. In fiscal year 2012, the report states the DEP had 270 full time equivalent positions, but only 236 filled positions.

“Although the state has increased its hiring efforts, the number of vacancies increased slightly over prior years,” the report states.

The WVDEP is projecting that in fiscal year 2013, its staff positions will decline slightly to 268. It also expects to have nearly 24 vacant positions in 2013.

Staffing problems have been an issue at WVDEP for many years, but is OSM jumping in to take over the state program or force some action on the matter? Well, here’s what the OSM annual report said (use the drop-down menus to find the report on this ridiculous OSM website):

Given the limited amount of revenue that the State expects to realize from increased permit fees, WVDEP, in cooperation with OSM, still needs to continue to identify other potential sources of revenue to fund the implementation of the State’s approved regulatory program.

The Gazette ran an editorial the other day that questioned Gov. Earl Ray Tomblin’s suggestion that West Virginia needs to get the federal government off our backs. It listed all the ways the federal government helps West Virginia and subsidizes our economy. The editorial ended:

When Tomblin tells the U.S. government to “get off our backs and leave us alone,” he’s objecting to federal enforcement against pollution and mining danger. But plenty of West Virginians welcome help from “the feds” in that department too.

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