Permits to Control Pollution in West Virginia

 

Learn when permits to control pollution are open for comment in your county, or anywhere in WV

Find amount & type of water pollution discharged at sites near you

Report water pollution which you see, by email or US mail: DEP Enforcement, 601 57th Street SE, Charleston WV 25304

If you see pollution, take pictures if possible, write down the location & source very carefully; and report them in writing (email works fine; click "Report" above or below).

Report air pollution which you see by email or fax

Report any pollution immediately, so the inspectors can find the cause while the trail is still fresh.

 

General Rules

 

Anyone who discharges anything into streams, lakes, ground, or air must usually apply for a permit from the state, which gives them limits on their pollution. These rules cover companies, nonprofits, governments, mines, sewer plants, construction sites, and most other activities. Permits are not needed for most farms, home septic systems (though these need a health permit), and construction runoff if less than an acre of land is cleared.

 

The federal and state legislatures believe that totally forbidding pollution would cost too much, so they set limits which are not too expensive to meet.

 

Pollution from construction sites, including simple muddy water, is covered by these same rules, and is discussed here.

 

What You Can Do

 

You can comment on DEP permits and Corps of Engineers permits (see below). Your first step is to sign up to get email notices when DEP is working on a permit in your county and wants public comment. Go to the middle of www.dep.wv.gov/insidedep/Pages/DEPMailingLists.aspx People without email can get notices by US mail. Call 800-654-5227 or write to WV DEP-Public Information Office, 601 57th Street SE, Charleston WV25304. Notices about comment periods are also in newspaper legal ads. When you see a notice, if you are not sure exactly where the discharge is, the notice will tell you the latitude & longitude, which you can enter on a map.

 

When a comment period starts, email or mail comments to the address in the notice, with application# & name of the proposal, and convincing statements of how the proposal hurts or helps water quality & violates or complies with environmental rules. If you can, say how this permittee or similar ones have created problems/benefits in ways that the permit could control. If you can, quote studies or EPA guidance about how permits like this should be written. If you quote studies on the web or in standard research journals, cite them; otherwise send the actual studies. Don't tell DEP to contact you for more info; they don't have time, and it is up to you to give evidence in the comment period, not later.

 

If you think people want to comment orally, ask for a hearing. The government may or may not hold a hearing, but if they do, it will be near the proposed project, and people can present comments orally (usually 5 minutes each) or in writing (no limit). They generally do not answer questions at the hearing, they just listen to comments.

 

If you get notice by email, it may be easiest to comment by email. If the notice doesn't give the addressee's email you may find it at http://www.dep.wv.gov/WWE/DWWMcontacts/Documents/Contact_Department.pdf

 

The Citizen's Guide to DEP describes the many types of permits issued by DEP. More and more are being announced on this email and US mail list.

 

Corps of Engineers also issues permits for activities in water & wetlands, and you can get on their lists to receive notices by US mail. Three offices handle different parts of WV:

Huntington http://www.lrh.usace.army.mil/permits/#cprPublic%20Notices

Pittsburgh http://www.lrp.usace.army.mil/or/or-f/public_notice.htm (and http://www.lrp.usace.army.mil/or/or-f/month.htm to see final actions)

Baltimore http://www.nab.usace.army.mil/Regulatory/public_notices.htm

 

Getting More Information

 

To help you prepare comments, you can also ask the same address in the notice, or the public information office, for copies of the draft permit, application, fact sheet, old permit, and other information in the file. You may or may not get that information before the comment deadline. Some files are very large, and you may be charged copying fees. If the address is close to you, you can go in person to see the file. Call first so they're ready. They can also explain in person or on the phone, the kinds of information in the files, and clarify why the permit is the way it is. Some companies have multiple permits & files. Of course if you're the person applying for the permit, you have this information already, so you have a headstart.

 

Note that your comments and inquiries become public, and others will know you were commenting or inquiring.

 

General Permits

 

When many people create pollution under similar conditions, like construction sites, the state prepares a "General Permit" with general rules, and the individual sites "register" under the general permit, rather than applying for their own permits. These registrations often are not announced on the email lists, though the general permit itself is, when it is prepared and updated every 5 years. Construction projects do have to post signs, which let you know you can comment, but other general permits do not require that.

 

Next Steps

 

After they receive all comments & decide what to do, they issue a "Responsiveness Summary" saying why they were or were not convinced by each comment. They do reject most comments, saying that what you want is not required by the minimum standards in the law, and they decline to use their discretion to require something different.

 

If DEP makes "significant changes" (undefined) after the comment period, there will be a new comment period with new public notice.

 

If their final decision does not meet the minimum standards in the law, and if you are affected (e.g. it's your permit, or you swim, boat, fish, or use the water downstream), you can appeal within 30 days of their decision to the WV Environmental Quality Board (46CSR4), Air Quality Board, or Surface Mine Board. Instructions are on their websites. Appeal must arrive or have a USPS postmark (not Fedex or UPS) in 30 days.

 

The Board will schedule a hearing in Charleston in a couple of months, where you and DEP present your case and any documents and witnesses you want, to convince the 5- or 7-member board that you are right & DEP was wrong. DEP and the organization holding the permit will be represented by lawyers. Individuals can also use a lawyer, or represent themselves. If you represent yourself, study their procedures (below) and ask the staff to clarify anything you don't understand, though they cannot give you advice.

 

If you reach agreement with DEP before the hearing, you can present that agreement to the Board instead of going ahead with the hearing. This pre-hearing settlement is one of the main ways either the applicants or opponents get some changes. Settlement offers generally cannot be used against you if you don't reach a settlement agreement (Evidence Rule 408).

 

After the Board decides, either side can (within 30 days) appeal to Kanawha County Circuit Court if necessary, then to the WV Supreme Court, and then to federal courts.

 

The AQB operates under the WV Air Pollution Control Act, and the Board’s hearing and procedures are in accordance with 52CSR1 Procedural Rule Governing Appeals, and the WV Rules of Civil Procedure.

 

The EQB operates under the WV Administrative Procedures for Contested Cases (29A-5-1) and 46CSR4 Procedural Rule Governing Appeals (46-04) in accordance with requirements governing water quality standards (46-01), groundwater standards (46-12), reclassification of waters designated for public water supply (46-07), and the procedural rule governing site-specific revisions to water quality standards (46-06).

 

All 3 Boards may refer to the WV Rules of Civil Procedure. and Rules of Evidence.

 

The Lists Below Let You Get an Overview of Pollution Permits in Your Area.

You can usually search by county, permit/application#, name, or USGS topo map name.

 

Background

Mapping: after you have a permit's latitude & longitude, you can find it on a map

Water Pollutants discharged in the past are posted by EPA.

When you select your county, they will show a list of permits and you click on the number.

Then you can select the information to see. To cut the massive volume, select just "Measurements and Violations."

You'll see for each "parameter" (pollutant), the date of each report, amount found, and whether it complied with the permit. There will be a page or so printed for each pollutant, showing readings from every test reported. To find just the readings which violated the permit, search for the word, VIOLATION

If you don't understand abbreviations for the parameters, some of them are:

BOD - Biochemical Oxygen Demand (a measure of biodegradable content; this is a pollutant, since it leads to lower oxygen levels in the stream as the effluent decomposes)

DO - Dissolved Oxygen (low levels suffocate life forms)

FECAL COLIFORM - a type of bacteria, not necessarily harmful, but an easy-to-measure indicator that other harmful bacteria are probably present

FLOW - volume of liquid released per day (not directly harmful unless it causes erosion; important because more flow carries more pollution)

PH - acidity/alkalinity (extremes harm river life)

SUSPENDED SOLIDS - fine suspension of anything in the liquid, which can harm water life & carry germs

Air Pollutants discharged in the past are posted by EPA

Air Pollution: general information & rules

Leaking Underground Storage Tanks & Superfund sites

Reminder: sign up to hear about comment periods & other information on the permit process

 

http://www.dep.wv.gov/permitting/Pages/default.aspx

0. Permits under Federal Clean Air Act

1. Permits Under Federal Clean Water Act (NPDES) & Underground Injection , Not Coal or Quarry

2. Coal & Quarry Permits Under Federal Clean Water Act (NPDES)

3. Mining Permits4

Electronically submitted permits (these also seem to be in relevant searches above)

 

Corps of Engineers also issues permits for activities in water & wetlands, and you can get on their lists to receive notices by US mail. Three offices handle different parts of WV:

Huntington http://www.lrh.usace.army.mil/permits/#cprPublic%20Notices

Pittsburgh http://www.lrp.usace.army.mil/or/or-f/public_notice.htm (and http://www.lrp.usace.army.mil/or/or-f/month.htm to see final actions)

Baltimore http://www.nab.usace.army.mil/Regulatory/public_notices.htm

 

 

Detailed Rules (Definitely comment if a permit violates these rules)

 

The limits for underground discharges of water must protect sources of drinking water and any other uses of underground water. Permits for underground discharges include industrial disposal wells, agriculture drainage wells, coal-mine backfill injection wells, and septic systems which have capacity to serve 20 or more people. (47CSR12)

 

The limits for discharges to surface waters must meet all four rules:

(a) reflect the best technology available for limiting pollution when the permit was originally issued or had a major expansion,

(b) meet the state's water quality standards (47CSR2, formerly 46CSR1) (usually the discharge does not meet water quality standards until it is diluted by a factor of 3 to 5, with river water

(c) limit any degrading of water quality (47CSR2, formerly 46CSR1), and

(d) meet regional rules for tributaries to the Ohio River or Chesapeake Bay.

The state Department of Environmental Protection (DEP) calculates the pollution limits and writes the permits according to federal rules (40CFR122 through 124 & 133) under the Clean Water Act and its own rules 47CSR10, 47CSR11 (At http://apps.sos.wv.gov/csr/search.asp click "Agency" & search for "water". Separately search for "environment".)

 

These rules include a 30-day comment period for new permits, major modifications, and for updates which happen about every 5 years. The legal requirements for this public comment period are described at:

*  38CSR2-3.2 & following for coal mine permit applications

*  47CSR10-12 & following for Office of Water Resources NPDES permits

*  47CSR13-13.24 and following for Underground Injection permits

*  47CSR30-10.2.d.1.E and following for Mining and Reclamation NPDES permits

When the government does not comply with the comment rules, we know of no case where they went back and did it right, even when they sent no notices to the public, or erred by saying the site was in a city 6 miles away.