By Dr. Christine Wimer President Jefferson County Foundation
In our September article, we discussed in brief the Department of Environmental Protection’s use of Unilateral Enforcement Orders to allow entities to sidestep the requirements of the Clean Water Act. We wanted to update you on these important issues.
In February of 2019, when the Department of Environmental Protection released a new Construction Stormwater General Permit (Statewide Umbrella Permit), two industry groups appealed the permit. These groups settled with the DEP prior to a hearing. The Environmental Quality Board (EQB) approved the settlement and a stay allowing covered entities to operate under the previous—now expired—2012 permit.
The draft permit that came out of the settlement was a fairly egregious example of back sliding, and as such, the Environmental Protection Agency rejected it until the DEP addressed the issues. The EPA also specifically objected to the DEP allowing entities to work under the 2012 permit conditions for any further time as this permit had expired and been replaced. In January of 2020, the DEP notified the EPA that it would not be resubmitting the draft permit and would instead go back to using the original 2019 permit.
Instead, in March 2020, the DEP issued more than 730 unilateral enforcement orders. Unlike normal enforcement orders that require entities to comply with statutes and regulations, these orders allowed entities to operate construction projects without a permit at all and under the expired 2012 permit conditions. This was in direct opposition to what the EPA had directed the DEP to do. This is in violation of the Clean Water Act and beyond the authority of the DEP.
The city of Charles Town in Jefferson County started construction in late February 2020 on the super sewer to Rockwool (new insulation plant) without a valid stormwater permit. Rather than requiring Charles Town to obtain a valid Construction Stormwater Permit, on March 2 the DEP issued a unilateral enforcement order allowing Charles Town to continue work without a permit at all. The order required Charles Town to comply with the 2012 permit condition. Unfortunately, these permit conditions are less protective, especially in karst, because the 2019 permit requires a karst mitigation plan and the 2012 permit has no such requirement. On March 16, the DEP issued 696 more unilateral enforcement orders followed by several more in the coming days.
Jefferson County Foundation appealed the first of these Orders—Order 9080 to Charles Town—in April of 2020. Find the appeal here https://www.jeffersoncountyfoundation.org/wp-content/uploads/2020/04/Jefferson-County-Foundation-Inc-v-WVDEP-Notice-of-Appeal-4-1-2020.pdf
Unfortunately, due to COVID-19, the process was elongated. A motion for stay by the Foundation was rejected by the EQB. Discovery proceeded over the next several months.
In July, 15 groups across three states affected by West Virginia watershed (including the Highlands Conservancy) joined Jefferson County Foundation in sending a letter to the EPA. The letter informed the EPA of this issue and demanded that the EPA investigate and take action. Although Recent Freedom of Information Act (FOIA) returns that show the EPA was working on just that, the Foundation has not received a response yet. We are currently working on following up. Check out the letter here https://www.jeffersoncountyfoundation.org/wp-content/uploads/2020/11/Letter-to-EPA-about-WVDEP-CWA-violations-with-regard-to-Construction-Stormwater-1.pdf
The EQB appeal of Order 9080 was supposed to go to evidentiary hearing in mid-October. However, two weeks before the hearing, the interveners in the case—the entity being allowed to operate its construction of the super sewer to Rockwool without a valid stormwater permit— argued the case should be dismissed because it recently obtained a permit despite having completed nearly the entire sewer line without a permit.
The EQB dismissed the case. This leaves the residents of Jefferson County with several miles of sewer line that was constructed under less protective conditions and the residents of the whole state with a DEP now seemingly empowered to ignore the clear direction of the EPA and side step the Clean Water Act when convenient.
We can not stand for this. On Wednesday, November 25, 2020, Jefferson County Foundation filed an appeal of this decision in Kanawha County Circuit Court. Read the appeal here https://www.jeffersoncountyfoundation.org/wp-content/uploads/2020/11/JCF-Appeal-in-Kanawha-County-Circuit-Court-11252020.pdf
We will keep you posted on the progress of this important case and the EPA response. . Please check out the Jefferson County Foundation website and if you are able support our effort to protect the natural resources of WV.