DEP statements regarding story about biologist’s memo

8/26/2009

In response to an article written by Ken Ward Jr., that appeared in the Aug. 22 Charleston Gazette, Scott Mandirola, the Department of Environmental Protection’s Director of Water and Waste Management, and Pat Campbell, Assistant Director of DWWM, have issued the following statements:

“It is important to state that Cabinet Secretary Randy Huffman’s testimony to the members of the Senate Committee on Environment and Public Works was not misleading as stated in the Gazette article,” Mandirola said. “The sentence in his testimony that is the subject of the issue should not have been construed to mean that the only impact of valley fills was a diminished number of a certain genus of mayflies.

“In fact, when read in its full context, the reference to mayflies was only made to reiterate West Virginia’s use of its multi-metric West Virginia Stream Condition Index for impairment determinations. This index, which has been used since 2002 with EPA’s approval, does not use mayflies as a stand-alone determinant of stream condition. Taken out of context, one could interpret this particular part of the testimony to mean mayflies are the only impacts from valley fills. This was clearly not the intent.”

Campbell said: “It’s easy to take this statement out of context, I’ve worked with this type of information for 10 years and I, too, misinterpreted the statement when speaking with the Gazette.”

Doug Wood, the DEP biologist who wrote the memo, stated: “I did not say, nor do I believe, the Cabinet Secretary was misleading Congress. My memo’s intent was to help him be better informed on the effects of large valley fill discharges.”

Mandirola said, “The inappropriate release of the memo and the incorrect characterization of its contents and its intent by the Gazette are most unfortunate because of the time and resources it has taken to clarify and correct the matter.”

The Gazette article suggests that the Secretary misled Congress about the damage being done by mountaintop mining, and cites an internal memorandum written by Wood. However, the actual testimony addresses the changes to the permitting protocol agreements entered into by the U.S. Army Corps of Engineers, the EPA and the DEP, which outlined what needed to be included to allow for issuance of the various permits required.

The section of the testimony from which the statement was taken is below:

West Virginia Concerns Regarding Recent EPA Actions

The consequences of the EPA’s recent position moves West Virginia and the nation toward the elimination of valley fills. In fact, EPA’s position cannot be limited only to mining related fills. If these impacts are real, they are real for all earth moving activities and would impact highway construction and other development activities.

With the exception of mitigation, there has been no change in the law since the Clinton administration to justify the sharp change in direction that the EPA has taken. The only new development that appears to have precipitated the EPA to change its position on valley fills is the publication of a study conducted by the EPA's Region 3 freshwater biology group in 2008 (Pond, et al., 2008). The WVDEP does not believe that this study justifies the sweeping change in regulatory approach the EPA is making.

Based on the Pond study, the EPA contends that water quality is not being protected downstream of the fills proposed by mining companies. In West Virginia, downstream water quality is principally regulated through the NPDES permit issued by the WVDEP, which believes that the NPDES permits it issues for these types of mining operations fully comply with all requirements, and the recently published Pond study does not change this belief. In fact, when WVDEP is satisfied that the proposed activity is protective, it issues a certification under section 401 of the CWA, over which it has authority.

The EPA contends that these mines will violate one of the State's narrative water quality criteria. This water quality standard prohibits a "significant adverse impact to the . . . biologic component of aquatic ecosystems." The Pond study concludes that this standard has been violated downstream from valley fills associated with mining operations, based on its application of two biologic assessment tools, the West Virginia Stream Condition Index (WVSCI) and the draft Genus Level Index of Most Probable Stream Status (GLIMPSS), to samples of benthic macroinvertebrate life taken from these streams.

A first observation about this study is that West Virginia does not use the draft GLIMPSS in its assessment of the biologic health of State streams. Various activities will need to be accomplished before GLIMPSS is finalized and put into regulatory use. Those activities include scientific peer review, allowing opportunity for public comment and the establishment of implementation thresholds. Second, WVDEP uses the WVSCI to assess biological integrity under the narrative water quality criterion. This practice has been utilized since 2002 with EPA approval. These tools are just that, tools. They are not stand alone determinants of compliance with the narrative criterion. Any application of these assessment tools in determining compliance with the narrative criterion must faithfully apply the language of the standard itself, which prohibits significant adverse impacts on the biologic component of the aquatic ecosystem. In that regard, the WVDEP considers streams with WVSCI scores less than 60.6 as biologically impaired.

Without evidence of any significant impact on the rest of the ecosystem beyond the diminished numbers of certain genus of mayflies, the State cannot say that there has been a violation of its narrative standard.

Contact:

Kathy Cosco
 
Kathy.Cosco@wv.gov
 

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