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

Article excerpt

  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. …