The Charleston Gazette
www.wvgazette.com

State board further weakens stream pollution rules

Thursday August 24, 2000

By Ken Ward Jr.
STAFF WRITER

In the last week, the state Environmental Quality Board has added more loopholes to a stream protection policy that federal regulators said was already too weak.

During two days of face-to-face meetings and one telephone conference call, board members finalized their proposed plan to implement the state's stream anti-degradation policy.

Board members refused to make major changes demanded by the U.S. Environmental Protection Agency and state environmental groups.

Instead, the board added an exemption for many coal mining operations and watered down language to govern runoff from logging and farming.

Board members also raised the amount of pollution allowed before state regulators must conduct a cost-benefit study of any new proposal to dump more pollution into streams.

"It's difficult to understand how the EQB can reject and refute so many of EPA's comments on this policy, when the EPA has stated in no uncertain terms that, without many of these changes, the policy will not be approved," said Jeremy Muller, executive director of the West Virginia Rivers Coalition.

Under the federal Clean Water Act, states are required by EPA to have anti-degradation policies. The idea of the policy is to keep clean streams from being made dirty. Streams are only supposed to be "degraded" if regulators study proposed developments and determine their social and economic benefits would outweigh the pollution they would cause. Under the law, if states do not implement anti-degradation policies, EPA must step in and do so.

West Virginia didn't have an anti-degradation policy until 1995, and has still not implemented that policy. Previous efforts to do so stalled when industry opposed the implementation.

This year, the board is under increased pressure from EPA to win legislative approval of an implementation plan. Lawyers for the Rivers Coalition have twice threatened to sue EPA if the federal agency did not force the state to act.

The coalition, other environmental groups and the EPA were particularly upset that the board's original proposal applied anti-degradation cost-benefit reviews only to new or expanded polluting facilities.

Board members refused to change that exemption for all existing facilities and added an exemption for surface mining operations that qualify for general "dredge-and-fill" permits from the U.S. Army Corps of Engineers.

Karen Price, president of the West Virginia Manufacturers Association, said that industry officials were upset that the board didn't add another exemption for Brownfields industrial cleanups.

Board members agreed to an industry request to raise the trigger for anti-degradation reviews from a 5 percent increase in stream pollution to 10 percent.

Price said industry wasn't satisfied, because the board also added a 20 percent cap to that trigger. Under the cap, any single facility that would increase pollution by 10 percent would require a cost-benefit study. But once new facilities that would increase pollution by a total of 20 percent in the stream are added, an anti-degradation review would be required.

"I don't know if we can fix this rule," Price said Wednesday afternoon. "I think it's got to go clear back, and we have to start all over again."

During a meeting last week, the board agreed to language governing nonpoint source polluters, such as farmers and loggers, so that the state Division of Environmental Protection can decide whether their pollution problems are severe enough to warrant the agency stepping in. Originally, the board generally exempted nonpoint pollution from the policy. But DEP was required to step in if voluntary pollution guidelines were not protecting clean streams.

"You have a lot of potential sources that are just being dismissed from review, and that's disappointing, " said Muller of the Rivers Coalition.

The board will now submit its final proposal to Secretary of State Ken Hechler and the Legislature, said Libby Chatfield, the board technical adviser.

Muller said his group will wait to see what the Legislature does with the rule before it decides whether to take legal action.

"We will be watching this very closely in the Legislature, trying to prevent more damage from being done," Muller said.