Court review sought for West Virginia water rules

OREANDA-NEWS. June 25, 2015. The Sierra Club along with other environmental groups plan to ask the US Fourth Circuit Court of Appeals to review the adequacy of West Virginia's water permit program for managing discharges from coal mining and other emissions sources.

The US Clean Water Act permits the Environmental Protection Agency (EPA) to allow states to administer the national pollutant discharge elimination system programs, which require sources to obtain permits to discharge into waterways regulated by the federal government.

The Sierra Club, along with the Ohio Valley Environmental Coalition and West Virginia Highlands, contend that West Virginia's program was not adequate for managing pollution discharges from the coal mining industry. The groups claimed that the state failed to properly enforce the permit program. Among the findings, the groups claimed that the state failed to permit certain discharge points from abandoned mine lands and enforce the selenium water quality standards and discharge limits at certain mining sites, according to a petition in June 2009.

The EPA filed a "move to dismiss" the complaint, saying the Clean Water Act does not establish a "mandatory duty" requiring the agency to respond to an administrative petition and that any claim of "unreasonable delay" ought to be heard before a federal appeals court rather than a district court.

The US District Court for the Southern District of West Virginia at Huntington on 19 June granted the petitioners' motion that EPA failed to file a written response within a reasonable time of the groups filing a petition in June 2009 asking the agency to review the state's permit program.

But the district court denied the second claim that EPA's failure to respond resulted in an "unreasonable delay," a term under the federal Administrative Procedure Act. The district court stayed the case until the petitioners send their second claim to the court of appeals, which has jurisdiction over the issue.

The Sierra Club plans to petition with the Fourth Circuit within 30 days of the 19 June district court order, or by 19 July. That filing will not appeal the district court's order but "will instead be a petition asking the Fourth Circuit to either decide the case or to clarify that the district court has jurisdiction to decide the case," the Sierra Club told Argus.