Preventing coal companies from using compliance schedules to loophole around the mountains.

• Author: Morgan, Jessica

1. 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.

2. 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.

   1. 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...