EPA threatened with lawsuit over W.Va. waterways

MORGANTOWN, W.Va. — Environmental groups that have spent years suing coal companies over water pollution in West Virginia are now setting their sights on federal regulators, accusing the Environmental Protection Agency of failing to ensure the state adequately enforces the Clean Water Act.

The West Virginia Sierra Club, West Virginia Highlands Conservancy and Ohio Valley Environmental Coalition have given the agency 60 days’ notice in a 13-page letter demanding it reject as inadequate a list of known polluted streams that state regulators recently submitted.

The state Department of Environmental Protection has not only abdicated its responsibility to protect waterways, the groups argue, but “colluded with polluters” to help them skirt federal law and avoid hundreds of millions of dollars in cleanup costs.

The EPA is reviewing West Virginia’s list of impaired waters, spokesman David Sternberg said Monday, declining to elaborate. The DEP did not immediately comment.

The Legislature, the environmental groups argue, has also collaborated with the DEP by passing weaker water-quality standards last year. Rather than submit those standards to EPA for consideration, the letter says, the DEP “has defiantly taken the indefensible position that it is not a revision.”

“EPA cannot accept WVDEP’s representation at face value,” the letter says. “EPA has an independent federal duty to determine whether a revision has in fact occurred, and in this case, it has.”

EPA has the power to rein in state agencies that abuse their power, the groups argue, and they urged it to intervene forcefully if it wants to avoid a lawsuit.

“Without leadership from the EPA and the Obama administration,” said OVEC’s Dianne Bady, “West Virginia’s public officials will continue to promote the annihilation of major swaths of southern West Virginia, and knowingly allow the sickening of the people they claim to represent.”

Allowing the state to continue what it’s doing, the groups contend, also tells state regulators and coal companies they can continue to ignore federal law “without consequence.”

The lawsuit threat stems from a list of known polluted waterways that the DEP sent the EPA in December.

Because of the Legislature’s action on water quality standards, the DEP said it must develop new methods for determining whether a stream is impaired. Rather than use the old standards to update its list for 2013, the DEP “opted to not conduct any assessment at all,” the letter says.

As a result, 173 West Virginia streams that would have qualified were left off. Had the state used guidelines recommended by the EPA, the groups argue, it would have identified another 546 impaired streams.

The EPA had until Jan. 22 to either approve or reject West Virginia’s latest list of impaired streams, but the letter says it has only requested a teleconference with DEP to discuss the matter.

“That response is not only legally deficient; it also reinforces the state’s recalcitrance,” the groups contend. “EPA’s passivity … not only harms our environment but weakens the rule of law in our region.”

Meanwhile, another coalition of environmental groups announced Monday that it was reopening a separate lawsuit against the U.S. Department of Interior over the so-called stream buffer zone rule for mountaintop removal mines.

Mountaintop removal is a particularly efficient and particularly destructive form of strip mining that blasts apart mountain ridge tops to expose multiple seams of coal. The practice of flat-topping the mountains, then filling valleys and covering streams with rubble has divided communities and led to multiple confrontations between coal miners and environmentalists.

Appalachian Mountain Advocates, the Waterkeeper Alliance and other groups say the Bush administration repealed a 25-year-old rule just before leaving office in 2008, clearing the way for widespread dumping of mining waste in streams.

The environmental groups initially put their lawsuit on hold when President Barack Obama took office, “based on the administration’s promise to replace the harmful Bush rule by 2012.”

But they announced they will now return to court “because the administration failed to live up to its agreement to revoke the Bush rule” and replace it with a new one that would protect waterways from mining pollution.