Preventing Coal Companies from Using Compliance Schedules to Loophole around the Mountains

Morgan, Jessica, Environmental Law

  I. INTRODUCTION

 II. THE CLEAN WATER ACT
     A. Contents of an NPDES Permit
     B. Changing the Permit Terms
        1. Appealing the Final Permitting Decision
        2. Modification
        3. Enforcement.

III. COMPLIANCE SCHEDULES
     A. What Is a Compliance Schedule?
     B. Restrictions on Compliance Schedule Extensions

 IV. WEST VIRGINIA'S STORY
     A. Regulation of Selenium
     B. How the Selenium Effluent Limits Arguably Disappeared

  V. CHALLENGING THE WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD'S
     AUTHORITY
     A. Environmental Quality Board Procedures
     B. Challenging the Environmental Quality Board's Authority
        Under State Law
        1. Environmental Quality Board's Scope of Authority Determined
           Under State Law
        2. Stays Outside the Scope of Authority
           a. Financial Hardship
           b. Due Process
     C. Challenging the Environmental Quality Board's Authority Under
        the Clean Water Act
        1. Stays Violate the Clean Water Act
        2. Tromping on the Spirit of the Clean Water Act

 VI. RELYING ON ANTI-BACKSLIDING TO ADDRESS SELENIUM DISCHARGES
     A. Extended Compliance Schedule Equals a Less Stringent Effluent
        Limitation
        1. Compliance Schedules Are Effluent Limitations
        2. Less Stringent Effluent Limitation
     B. No Exceptions Apply to Coal Companies
        1. Exceptions to Anti-Backsliding
        2. Limitation to the Exceptions
     C. The Enforceable Effluent Limitation

VII. CONCLUSION

I. INTRODUCTION

The purple mountain majesty of the Appalachian Mountains is turning black from environmentally destructive mountaintop removal mining. This method of mining discharges a considerable number of pollutants into the streams of the region. (1) The Clean Water Act (CWA) (2) requires the Environmental Protection Agency (EPA) to prevent coal mining point source discharges from negatively affecting water quality. (3) However, the rivers of Appalachia continue to decline and now "nine out of every 10 streams downstream of surface mining operations exhibit significant impacts to aquatic life." (4) Some blame the coal industry for manipulating the system and EPA for failing to use its full statutory authority. (5)

For many, the golden-brown algae bloom in September 2009 in Dunkard Creek along the West Virginia and Pennsylvania border is just one example of how coal companies are exploiting the CWA and its regulations to their advantage. (6) The algae bloom killed nearly all of the aquatic life for a thirty-mile stretch of Dunkard Creek. (7) These toxic algae flourished because of high chloride levels in Dunkard Creek (8) suspected to have come from Consolidation Coal Company's (Consol) mining operations. (9) Consol's discharge points from these mines were subject to National Pollutant Discharge Elimination System (NPDES) permits. (10) However, the permits lacked an enforceable effluent limitation for chloride because chloride was subject to a compliance schedule. (11) A compliance schedule is "a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard." (12) Permitting authorities use compliance schedules to allow an industry time to comply with newly adopted water quality standards. (13) Essentially, a compliance schedule allows a permittee to put an effluent limitation on layaway until a time certain in the future. (14) Simply put, the compliance schedules in Consol's NPDES permits allowed Consol to legally discharge nigh levels of chloride creating an atmosphere ripe for an environmental disaster. (15)

Consol and other companies discharging pollutants into waters of the United States must apply for an NPDES permit to legally discharge the pollutants. (16) Typically, the permit contains immediately enforceable effluent limitations restricting the quantity, rate, and concentration of the discharges. (17) However, the inclusion of compliance schedules into NPDES permits delays the enforceability of the effluent limitations. (18) Citing a lack of technology and the necessity of discharging water for miner safety, the coal mining industry continually receives extensions on compliance schedules. (19) The coal companies continue to pollute without legal ramifications upon receiving an extension of the compliance schedule. (20) These continual extensions of compliance schedules in coal company NPDES permits present obstacles to preventing the further degradation of the Appalachian rivers. (21)

Coal companies in the Appalachian region are masters at using compliance schedules to avoid complying with effluent limitations for certain pollutants. This Comment analyzes ways to thwart the manipulation of compliance schedules by coal companies. In particular, this Comment examines the clash over selenium effluent limitations in West Virginia. The West Virginia Department of Environmental Protection (WVDEP) began including selenium compliance schedules in NPDES permits in 2004. (22) Many of the coal companies received extensions of the selenium compliance schedules in 2007 delaying the effective date for the selenium effluent limitation until April 6, 2010. (23) The coal companies sought a second extension of the compliance schedules, but the WVDEP denied the requests. (24)

The stage was set for the selenium effluent limitations to become effective on April 6, 2010 when the agency's appeals board issued stays to prevent the compliance schedules from expiring. (25) The stays issued by the agency's appeals board generated citizen suits seeking to enforce the selenium effluent limitations regardless of the stay. (26) The citizens challenged the authority of the agency's appeals board to suspend the effluent limitations. (27) One federal district court in West Virginia agreed with the citizen groups and found the stays exceeded the appeals board's authority. (28) This Comment examines the strength of this argument as a way to force the coal industry to comply with the selenium effluent limits.

The anti-backsliding provision of the CWA presents another avenue for EPA and the citizens of Appalachia to hold the coal industry responsible for toxic discharges of selenium. (29) Anti-backsliding prohibits the renewal, reissuance, or modification of a permit containing "effluent limitations which are less stringent than the comparable effluent limitations in the previous permit." (30) Compliance schedules are effluent limitations, and case law supports the notion that issuing an extension of a compliance schedule about to come into effect is indeed less stringent. (31) Thus, the anti-backsliding provision is a potential means to force the coal mining industry to comply with selenium effluent limitations regardless of the state appeals board stays.

This Comment explores the coal industry's abuse of compliance schedules, concluding that the CWA and its regulations leave the door open for enforcement of effluent limitations despite the coal industry's abuse. Part II of this Comment discusses the CWA statutory and regulatory framework for issuing NPDES permits to coal companies. Part III explains the structure of compliance schedules and restrictions on the use of compliance schedules. Part IV provides background on coal mining NPDES permits, the history of selenium regulation in West Virginia, and the current status of the selenium effluent limitations. Part V examines the authority of a state to suspend the operation of a coal company's NPDES permit. Part VI evaluates the legality of compliance schedules in considering the anti-backsliding provisions of the CWA.

II. THE CLEAN WATER ACT

Knowing the role of NPDES permitting within the CWA helps in understanding how the coal giants of Appalachia continue to degrade the water quality of the region. The overarching purpose of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (32) This goal is achieved primarily by prohibiting the "discharge of any pollutant by any person" into waters of the United States. (33) One of the exceptions to the general prohibition of discharging pollutants is for discharge in compliance with an NPDES permit. (34)

To receive a permit, a discharger must apply to EPA or an authorized state. (35) EPA issues NPDES permits, but EPA may also grant authority to a state to administer its own NPDES program. (36) EPA's authorization of a state NPDES program suspends EPA's issuance of NPDES permits in the state. (37) The state becomes the primary administrator of the NPDES program in the state. (38) However, EPA retains a limited supervisory role. (39) EPA exercises supervisory authority over the state programs by vetoing individual state-issued permits or withdrawing the state's authorization. (40) This Part describes the contents of the state-issued permits and the methods by which to change the contents of the state-issued permits.

A. Contents of an NPDES Permit

The NPDES permit regulates the discharge of pollutants through technology-based and water quality-based standards. (41) Water quality standards identify the water quality goals of a water body by designating certain uses of the water body and establishing criteria to protect those uses. (42) The water quality standards consist of 1) a classification system based upon expected beneficial use of the water, 2) water quality criteria necessary to support the designated uses, and 3) an antidegradation policy. (43) States develop water quality standards applicable to state waters, which EPA then reviews and approves as meeting CWA requirements. (44)

The CWA requires all NPDES permits to include effluent limitations necessary to comply with EPA-approved water quality standards. (45) Effluent limitations are the primary mechanism for ensuring compliance with water quality standards. Effluent limitations restrict the quantity, rate, and concentration of discharges. (46) If a technology-based effluent limitation fails to achieve the established water quality standards, then the state authority must develop water quality-based effluent limitations designed to ensure attainment of the water quality standards. (47) Thus, the NPDES permit contains water quality-based effluent limitations as an additional protection of water quality.

B. Changing the Permit Terms

The NPDES permit goes through a public notice and comment process before being issued. (48) The NPDES permit is final and effective after the state permitting authority addresses the public comments and makes a final permitting decision. (49) Because the permit has finality, compliance with the NPDES permit insulates permittees from enforcement actions. (50) If dissatisfied with certain effluent limitations included in the permit, the permittee can seek to change the permit terms by appealing the final permitting decision, seeking a modification, or violating the permit.

1. Appealing the Final Permitting Decision

Once the state permitting authority issues the final permit, the permittee has thirty days to challenge the permit's terms. (51) The permittee appeals to the state agency's appeals board. (52) If unsuccessful, the permittee may seek judicial review of the final NPDES permit. (53) The permittee must challenge the terms of the permit within the thirty days permitted by the state agency. Otherwise, the permit is final and any noncompliance with those terms is grounds for an enforcement action. (54)

2. Modification

The permittee may also seek to change the permit terms through modification procedures. CWA regulations allow modification in limited circumstances. (55) Specifically, the CWA regulations only allow modification of compliance schedules if good cause exists. (56) Good cause includes "an act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonably available remedy." (57) Thus, a permittee must show good cause in seeking to modify a compliance schedule.

In modifying the permit, the permitting authority must also comply with specific procedures. (58) To modify the permit, the permitting authority must prepare a draft permit incorporating the modifications. (59) The permitting authority must make the draft permit available for public notice and comment before issuing a modified final permit. (60) The draft permit is submitted to EPA; (61) it may object to the permit modification within ninety days of receiving notification from the authorized state. (62) If the permitting authority fails to follow the modification procedures or EPA objects, the permit is not legally modified and an enforcement action may proceed on the basis of the original permit terms. (63) Additionally, the permittee must comply with all other requirements of the permit when seeking a modification. (64) The effluent limitations in the NPDES permit are final unless the permittee successfully modifies the permit. Otherwise, the permittee must comply with all terms in the permit until the permit expires.

3. Enforcement

The permittee must comply with all terms of the NPDES permit once issued. (65) Compliance with the permit constitutes compliance with the CWA, creating a permit shield. (66) The permit shield prevents EPA, the state agency, and citizens from claiming a violation of the CWA so long as the permittee is in compliance with the terms of its NPDES permit. (67) The permit shield benefits coal companies because they escape liability for any damages the pollutant discharges cause so long as they discharge pollutants in compliance with the terms of their NPDES permits. (68) Thus, it is imperative for the permitting authority to incorporate effective effluent limitations in the permit, which adequately protect water quality, because the permit shield protects the companies from liability.

However, a permittee's failure to comply with the permit violates the CWA and subjects the permittee to enforcement actions. (69) EPA, the state permitting authority, and concerned citizens may bring enforcement actions against the permit violator. (70) In some instances, the permit terms may change through a settlement agreement of an enforcement claim. (71) However, to legally change the permit, the settlement terms must go through the CWA modification procedures. (72) Moreover, the permittee still faces substantial penalties for the violations occurring prior to the settlement. (73) The enforcement process is reflective of the purpose of the NPDES permitting process to eliminate discharges that violate water quality standards. And yet, even with all of the requirements of NPDES permits, the coal industry discovered a means by which to discharge pollutants that degrade the water quality in the Appalachian Mountains.

III. COMPLIANCE SCHEDULES

NPDES permitting conditions become even more complicated when a permit includes a compliance schedule for a water quality-based effluent limitation rather than an immediately effective effluent limitation. A compliance schedule is "a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard." (74) The permitting authority has the discretion to determine whether to include a compliance schedule, but must ensure that the compliance schedule leads to attainment of the final effluent limitation as soon as possible. (75) This discretion is not unlimited. The inclusion of the compliance schedule must properly modify the permit and must not violate the anti-backsliding provision of the CWA. (76)

A. What Is a Compliance Schedule?

Compliance schedules "allow the discharger to postpone immediate compliance with more stringent effluent limitations specifically tailored to meet the applicable State water quality standards." (77) The compliance schedule comprises an enforceable final effluent limitation and a date for achieving the final effluent limitation. (78) The term final effluent limitation refers to the effluent limitation the permittee must achieve once the compliance schedule expires. (79) Interim limitations in the compliance schedule may include a less stringent effluent limitation or construction deadlines to assist in achieving the final effluent limitation by the compliance schedule's expiration. (80) Customarily, permitting authorities used compliance schedules in enforcement orders. (81) NPDES permits may also include compliance schedules directly in the permit's terms. (82) State water quality standards or a state's CWA implementing regulations dictate whether NPDES permits may include a compliance schedule. (83)

If state law allows permits to include compliance schedules, the permitting authority must make several findings before inserting a compliance schedule into a permit. (84) The permitting authority must first find that the discharger cannot immediately comply and that the compliance schedule will lead to an effluent limitation meeting the state's water quality standards. (85) The permitting authority must also find the compliance schedule appropriate based on the amount of time the discharger has already had to meet the effluent limitations, the discharger's good faith efforts to comply, and the modifications needed at the facility to meet the effluent limitations. (86) The permit authority must also ensure that the compliance schedule requires compliance with the final effluent limitations as soon as possible. (87) The permittee must comply with the interim limitations and the final effluent limitation by the compliance schedule's expiration date once the schedule is included in an NPDES permit. (88)

B. Restrictions on Compliance Schedule Extensions

A permittee may seek to extend the compliance schedule, but the permitting authority's power to extend compliance schedules is not unlimited. The permitting authority possesses minimal control over extending compliance schedules because compliance schedules "implicitly sanction pollutant discharges that violate applicable State water quality standards." (89) Compliance schedules, as part of an NPDES permit, must follow the procedures for modification and comply with the anti-backsliding provision of the CWA. (90) The federal regulations for modifications and the anti-backsliding provision operate as restrictions on the permitting authority's power to extend compliance schedules.

Federal regulations for modifying NPDES permits apply to the modification of compliance schedules because compliance schedules are part of the NPDES permit. (91) Although the permitting authority possesses the ability to extend a compliance schedule, the extension must follow the federal and state procedures for modifications to extend the compliance schedule legally. (92) The modification procedures limit the discretion of the permitting authority because the process opens the door to public participation through notice and comment. …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Preventing Coal Companies from Using Compliance Schedules to Loophole around the Mountains. Contributors: Morgan, Jessica - Author. Journal title: Environmental Law. Volume: 41. Issue: 4 Publication date: Fall 2011. Page number: 1295+. © 1999 Lewis & Clark Northwestern School of Law. COPYRIGHT 2011 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.