Court Hears Arguments in West Virginia Stream Cleanup Case

May 8, 2018

A federal appeals court was urged Tuesday to overturn a ruling by a judge who found that the state of West Virginia has abandoned its responsibility to write cleanup plans for streams harmed by pollution from mountaintop-removal coal mining.

The judge's 2017 ruling said the state Department of Environmental Protection has dragged its feet for years on plans required under the federal Clean Water Act.

In arguments before a three-judge panel of the 4th U.S. Circuit Court of Appeals, a Justice Department lawyer representing the U.S. Environmental Protection Agency said West Virginia intends to draft the cleanup plans, but has been working to satisfy a 2012 state law that requires broadening the way it determines the biological health of streams.

"This is a hard issue. This is a new issue," said attorney James Maysonett of the Justice Department's Environment & Natural Resources Division. "West Virginia has a schedule to get this done."

Derek Teaney, senior attorney for Appalachian Mountain Advocates, said the law does not require the state to develop the new assessment tool before it submits cleanup plans for the streams affected by pollution from mining.

The group sued the U.S. Department of Environmental Protection on behalf of the Sierra Club, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy and the West Virginia Rivers Coalition.

"We are trying to compel agency action," Teaney said.

In court documents, the group contends that the state has refused to develop "total maximum daily loads," which are plans for restoring impaired waters that identify the maximum amount of a pollutant a stream can receive while still meeting water-quality standards.

The streams have been designated as "biologically impaired" because of diminished levels of aquatic life. The environmental groups say the state Department of Environmental Protection has identified the cause of the diminished aquatic life in nearly 200 of those streams to toxicity related to mining pollution.

The Clean Water Act requires states to develop the plans for any stream that does not meet water-quality standards. If a state doesn't develop a satisfactory plan, the law requires the U.S. Environmental Protection Agency to step in and come up with a plan.

The 4th Circuit did not indicate when it will issue its ruling.