Tag: Clean Water Act

W.Va. Environmental Groups Take Steps to Sue Coal, Chloride Facilities for Pollution

The Sierra Club and a coalition of West Virginia-based environmental groups took the first step Tuesday toward taking legal action against companies operating 15 coal facilities and one chloride plant in West Virginia and Pennsylvania for violating the Clean Water Act and the Surface Mining Control and Reclamation Act.

The nine companies, which include Murray Energy, Bluestone Coal and Consol, operate coal mines, coal preparation and processing facilities, a power plant and a chloride plant across West Virginia.

Environmental groups said they sent “notice of intent to sue” letters with the companies, West Virginia Department of Environmental Protection and United States Environmental Protection Agency. The notices allege self-reported data, by the facilities to state and federal regulators, show an ongoing pattern of pollution discharges that violate federal permits. According to the letters by envronmental groups, in some cases these levels are hundreds of times above what is legally allowed.

For example, the groups allege one facility, the Harrison County Coal Mine, operated by Murray Energy, is discharging 220 times its permitted limit of aluminum.

A spokesperson for Murray Energy said as of Tuesday afternoon it had not yet received the letter and does not comment on threatened or pending litigation.

The “notice of intent” letters give operators 60-days notice. Environmental groups said if they fix the problems, or if state or federal environmental regulators take action, they would not file in court. If not, the advocacy groups said they will pursue legal action in federal court.

Representatives for the other companies named in the letters, which include Southern Land, LLC, Lexington Coal Co, American Bituminous Power Partners, Mepco Inc., Black Castle Mining Company and Eagle Natrium LLC, did not immediately respond to requests for comment.

 

West Virginia DEP Proposes Changes to Stream Crossing Permit

The West Virginia Department of Environmental Protection is reconsidering how it permits stream crossings for natural gas pipelines and other federal projects approved by the U.S. Army Corps of Engineers.

In a notice published this week, the agency announced a set of proposed changes to West Virginia’s 401 Water Quality Certification specifically for federal water permits issued by the Army Corps, which accounts for the majority of certification requests.

 

The 401 certification contains state-specific conditions that must be met in order to meet the state’s water quality standards before a permit or license is issued by the federal agency.

Under federal law, sediment or debris cannot be released into streams, rivers or wetlands, unless the Army Corps issues a permit under Section 404 of the Clean Water Act. These permits are required for dam, levee, and highway constructions, as well as mining projects and other large developments that require federal approvals to discharge fill material into waterways.  

 

Interstate natural gas pipelines, such as the Mountain Valley and Atlantic Coast pipelines being developed through parts of West Virginia, also require permitting by the Army Corps.

WV DEP’s proposed changes to its water quality certification include striking a provision that requires water crossings, or construction that goes under or disturbs stream, rivers or wetlands to be completed within 72 hours.

That requirement was at the heart of a recent ruling made by the 4th U.S. Circuit Court of Appeals. The court in June sided with a coalition of conservation groups who argued the federal Section 404 permit granted to the Mountain Valley Pipeline (MVP) should be invalidated because the pipeline developers’ planning documents showed it could not complete some water crossings in the 72-hour time frame required by the state.

The federal appeals court agreed and stayed water crossings by the MVP in West Virginia on June 21. Since then, all construction of the 303-mile pipeline has been halted following a July 27 ruling by the 4th Circuit to invalidate two federal permits related to the pipeline route through Jefferson National Forest.

Other proposed changes in the 17-page order include a provision that would allow a stream crossing method that is more environmentally protective than currently allowed.

The order also gives the head of DEP the power to “waive, change, or eliminate” any of the conditions set out under the 401 Water Quality Certification if the project can provide proof “that it will employ a method or plan that will be more environmentally protective.”

The DEP is currently accepting comments on the proposed changes.

Mountain Valley Pipeline Construction Partly Halted in West Virginia

The 4th U.S. Circuit Court of Appeals Thursday halted some construction of the natural gas Mountain Valley Pipeline in West Virginia.

The three-judge panel sided with conservation groups who challenged the pipeline’s water-crossings permit issued by the U.S. Army Corps of Engineers.

Environmental groups, led by the Sierra Club, argued that construction of the 303-mile pipeline should be halted in the state, because the pipeline developer’s own documents showed they could not complete construction quickly enough to comply with the federal permit.

Clean Water Act Permitting

At the heart of the dispute is a federal Clean Water Act permit which allows the Mountain Valley Pipeline (MVP) to disrupt streams and wetlands during construction, while maintaining water quality standards.

The Army Corps of Engineers granted the MVP a Nationwide Permit 12, which covers all stream and wetland disruptions caused by utility line construction nationwide. It is one of about 50 broader so-called “general permits” that can be granted under Section 404 of the Clean Water Act.

A general permit does not require public notice and comment or environmental review.

A spokesperson for the Army Corps of Engineers said it could not comment on the decision to grant the MVP a general permit. They also said they could not comment on the court’s decision, because issues regarding ongoing litigation are handled by the Department of Justice. The Department of Justice did not respond to a request for comment.

Environmental groups praised the court’s decision. In a statement, Peter Anderson, program manager for Appalachian Voices Virginia, said the one size fits all permit does not make sense for natural gas pipeline construction. He said the MVP should be granted an individual permit under Section 404 of the Clean Water Act, which would allow for more public debate on the impact of the pipeline’s construction on waterways.

“Putting the breaks on in-stream construction activity for the Mountain Valley Pipeline while the court performs its full review not only makes sense, it is also the only just outcome for communities directly impacted by this destructive project,” he said. “MVP’s inability to cross rivers in compliance with the conditions of the permit is the most obvious – but certainly not the only – reason why blanket permits should not be used for projects of this size.”

Two months after construction began, the MVP was cited by the West Virginia DEP for failing to control erosion at two work sites.

Construction Timeline

State regulators can add protections under the federal Clean Water Act Section 404 permitting scheme. In West Virginia, for example, the Department of Environmental Protection requires pipeline operators to finish a stream or wetland crossing in 72 hours.

In its petition to the court, environmental groups said MVP’s own planning documents showed river crossing for the Elk, Gauley, Greenbrier and Meadow rivers would take 4-6 weeks to complete. The federal appeals court agreed and stayed stream and wetland crossings.

In a statement released hours after the decision, Gov. Jim Justice said the administration was committed to the MVP.

“We will continue to monitor these proceedings closely to determine what role the state may play in expediting the construction of this pipeline,” he said.

MVP spokeswoman Natalie Cox said in a statement they are disappointed with the temporary setback. She said the company is evaluating options to continue construction that does not involve stream and wetland crossings.

Cox said the pipeline, which is a joint venture between EQT Midstream, WGL Midstream, RGC Midstream, Con Edison Transmission and an affiliate of NextEra, intends to ask for a rehearing and intends to begin operations in late 2018.

Currently, the pipeline cannot engage in stream or wetland crossings until the 4th Circuit rules on the pending case. Oral arguments are scheduled for late September.

Court Hears Arguments in West Virginia Stream Cleanup Case

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.
 

State Agency Refuses Gas Pipeline Appeal

The Justice administration has refused to schedule a hearing on an appeal of the Mountain Valley Pipeline's authorization.The Charleston Gazette-Mail…

The Justice administration has refused to schedule a hearing on an appeal of the Mountain Valley Pipeline’s authorization.

The Charleston Gazette-Mail reports Department of Environmental Protection Secretary Austin Caperton signed a letter last week denying a request for a hearing challenging the DEP’s approval of a Clean Water Act certification for the MVP. The letter was sent to Appalachia Mountain Advocates, an environmental law firm that challenged the authorization.

Appalachian Mountain Advocates senior attorney Derek Teaney says individuals and groups will probably appeal Caperton’s decision in the 4th U.S. Circuit Court of Appeals.

The permit in question is a certification under the Clean Water Act that stipulates pipeline activity will not violate the state’s water quality standards.

The MVP would run about 300 miles from West Virginia to Virginia.

Commerce Secretary Pick's Company to Pay $150 EPA Fine

A company associated with West Virginia’s newly tapped commerce secretary has agreed to pay a $150,000 fine after it was accused of violating the federal Clean Water Act.

The Charleston Gazette-Mail reports federal authorities recently finalized a deal with High Tech Corridor Development LLC regarding what federal inspectors concluded was unpermitted construction work for an extension of the White Oaks business park in Bridgeport.

High Tech Corridor is part of The Thrasher Group, an engineering firm headed by Woody Thrasher, Gov-Elect Jim Justice’s pick to be the next commerce secretary.

The consent agreement was proposed by the EPA in October and finalized last month.

Thrasher said in an email that the Department of Environmental Protection “has not acted in a responsible manner on this issue.” He did not elaborate.

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