Nov. Natural Resources Report to the State Board

Legislative Proposals

Here is the Environmental Council’s #1 2011 legislative priority – Marcellus Shale Drilling plus the need for more inspectors. Other items they will be following will be the Water Quality Standards Rule, Ending Coal Slurry Injection, Regulation of Coal Ash, and Renewable Energy Incentives.

The Water Quality Standards Rule (see state board report, September, 2010.) The League is particularly interested in seeing that the Total Dissolved Solids rule is approved by the legislature.

Marcellus shale. PROPOSED LEGISLATION (From the Charleston Gazette)

A legislative interim committee has been considering what measures the state should take to minimize environmental and social problems that come from drilling for gas in Marcellus Shale formations. The interim committee is looking at a 90-page draft law. One problem is that the state’s inspection program is tremendously under staffed so the draft proposes increasing permit fees to help ameliorate that problem. At present fees for shallow wells are $600 but the proposal would establish fees for Marcellus Shale drilling ranging from $5,000 to $15,000 per well. Obviously the natural gas drillers object to such rates saying they could cripple the industry. Legislation also will consider water pollution, water withdrawal and disposal, erosion, and road destruction.

The WV DEP is also preparing a bill similar to the committee’s draft. Both drafts require comprehensive water management plans, including listings of chemicals to be used in fracking fluids, and measures to control water consumption and waste. Both also require erosion and sediment-control plans, reclamation and replanting of disturbed lands, and the lining of large open pits, or impoundments, to prevent salt and chemicals from leaching out. But the committee’s version tackles some issues the DEP didn’t, including the spacing of wells, road protection and the performance bonds, which industry says would be a hardship on smaller companies. The DEP’s version will raise fees, too, but it is not known how much.


On November 4, Marilyn McGeorge attended a DEP meeting on a discussion of proposed WQ standards revisions (not in the 2011 legislative session). Here is her report:

Part I of the meeting. The reason for the proposed revision is that the current rule, established in 1983, needs to be updated to eliminate some confusion about implementation methods and water quality standards necessary to meet the requirements of the Clean Water Act, as well as to establish  regulatory expectations for variances. The proposed rule is to be published in the summer of 2011….

Part II dealt with developing stream nutrient criteria.  It has been determined that in WV, a stream by stream basis is best, focusing on the most nutrient sensitive streams –  Greenbrier, Tygart, So. Branch Potomac, and Cacapon rivers.  Section 101 (a)(2) of the CWA sets a national goal for water quality: “protection and propagation of fish, shellfish, and wildlife, and  recreation in and on the water,” wherever attainable.  Apparently, a  possible change could be that if the national goal is unattainable,  then the “Highest Attainable Use” would be adopted.

In November 2009, DEP received a Tier 3 nomination for three streams in Preston County: Watkins Run, Fill Hollow, and Unnamed Tributary of  Fill Hollow.

Tier 3 streams are defined as Outstanding National Resource Waters,and presently the list includes all streams within the boundaries of  federally designated Wilderness Areas, all federally designated Wild  and Scenic rivers, all streams in state parks which are high quality  or naturally reproducing trout streams, all waters in national parks and forests which are high quality or naturally reproducing trout  streams, all waters designated under the “National Parks and  Recreation Act”.

In addition, there is a clause in 47‐2‐4 that provides the public the opportunity to nominate streams for Tier 3 consideration, provided  certain steps are followed. Watkins Run, Fill Hollow, and Unnamed Tributary of Fill Hollow are the first streams nominated for Tier 3 protection via this process.


In response to Sierra Club’s appeal of a permit, the EQB temporarily blocked the International Coal Group from opening a new strip mine in Monongalia County. Full hearings will take place in mid-December. The Sierra Club asserts that the DEP did not perform a “reasonable potential analysis” of water quality impacts and should have included additional water discharge limits for electrical conductivity, total dissolved solids, selenium, and sulfates. The Club also pointed out the mine’s potential for contributing to a golden algae bloom, such as in last year’s Dunkard Creed fish kill.

View the ruling here.

CHARLESTON, W.Va. — The state Environmental Quality Board has temporarily blocked International Coal Group from opening a new strip mine in Monongalia County, granting a stay until the Sierra Club gets a full hearing on its appeal of the permit.

EQB members have set aside four full days in mid-December to consider testimony and arguments over a water pollution permit for ICG subsidiary Patriot Mining Co.’s New Hill West Mine along Scotts Run near Cassville.

The appeal is likely to be highly controversial, as it will focus at least in part on new federal water pollution guidance for Appalachian strip mines and on potential problems with using coal ash as part of the mine reclamation plan.

“We’re very pleased that the Environmental Quality Board appreciates the risk of harm that will occur to streams and the environment if the company is allowed to conduct its proposed mining operations, and that the board has granted the motion for a stay,” said Petra Wood, a Sierra Club member who lives adjacent to the mine site. “We look forward to the hearing in December which will show the board all of the problems with the permit, and that these streams and our community should be permanently protected.”

Roger Nicholson, general counsel for ICG, declined comment on the board’s ruling.

Lawyers for ICG had argued against the stay, saying in legal filings that the permit approval at issue was simply a modification to expand a mining site where operations are already ongoing.

Patriot Mining wants to add a new, 225-acre surface mine called New Hill West. The operation would discharge pollution under a modification of an existing water quality permit that covers five other adjacent mine sites.

In their appeal, Sierra Club lawyers argue the state Department of Environmental Protection wrongly did not perform a “reasonable potential analysis” of the mine’s possible water quality impacts. The Sierra Club also argues DEP should have included in the permit additional water discharge limits for electrical conductivity, total dissolved solids and sulfates.

The Sierra Club said DEP should have considered the mine’s potential to contribute to an outbreak of golden algae, a toxic algae blamed for a huge fish kill in nearby Dunkard Creek in September 2009.

Also, Sierra Club lawyers sa.y they will present evidence at the hearing that shows existing mining at the site is already violating state and federal water quality standards.

Reach Ken Ward Jr. at kw… or 304-348-1702,


The WV DEP and the National Mining Association filed a lawsuit against the EPA because of its proposed guidance that would require more reliance on scientific evidence in evaluating surface mining permits and ensuring that the Clean Water Act will be complied with.

Subsequently a number of environmental groups filed to intervene on behalf of the EPA’s guidance. Besides reviewing permits the EPA, using scientific analysis, has been reviewing the water quality impacts of valley fills associated with Mountain Top Removal.


Recent studies indicate that the costs of mining coal to the state surpass the income from taxes. Downstream Strategies and the West Virginia Center for Budget and Policy concluded the coal industry last year cost the state budget $42 million more than what the industry pays in taxes and other revenues. Some of the costs include tax breaks and “legacy costs” such as damage to roads and reclaiming forfeited mines.

The report suggests that the legislature should pass laws that will ensure the coal industry pays for these costs.

WV’S RULEMAKING PROCESS (Ken Ward, Charleston Gazette, Nov. 16)

A national examination of the states’ rulemaking procedures “finds WV’s regulatory review scheme concentrates virtually all regulatory power in the hands of the Legislature. While the arrangement is designed to ensure that regulatory decisions are made by democratically accountable legislators, the system often seems to take regulatory power away from independent agencies experts and exposes the rulemaking process to political influence…. The state has no significant requirement for cost-benefit analysis, so regulatory decisions are often made in a vacuum, with much of the information (and sometimes even the regulation itself) coming from lobbyists.”

The League, along with other environmental groups, experienced this political pressure in when we tried to pass strong rules for protecting the quality of our streams. (Do you remember the conversation about Tier I, Tier II, and Tier III?)

ENDOCRINE DISRUPTERS (From Charleston Gazette).

The U.S. EPA added two perfluorindated compounds to the list of chemicals that will be screened for their potential to be endocrine disrupters. EPA stated that its latest list of 134 chemicals to be screened includes Perfluorooctanoic acid, or PFOA or C8, and PFOS.

“Endocrine disruptors are chemicals that interact with and possibly disrupt the hormones produced or secreted by the human or animal endocrine system, which regulates growth, metabolism and reproduction…. Endocrine disruptors represent a serious health concern for the American people, especially children.  Americans today are exposed to more chemicals in our products, our environment and our bodies than ever before… We are using the best available science to examine a larger list of chemicals and ensure that they are not contaminating the water we drink and exposing adults and children to potential harm.” EPA Administrator Lisa P. Jackson said.