Acting in response to state legislation, the West Virginia Department of Environmental Protection ceased work on promulgation of total maximum daily loads related to ionic toxicity. Ionic toxicity is a consequence of mountaintop removal coal mining. In case you weren’t aware, the coal industry has a certain amount of political clout in the Mountain State (and can they keep the nickname if they chop the tops off of all of their mountains?).
WVDEP’s action – or inaction – eventually led to litigation, when the Ohio Valley Environmental Coalition sued EPA for failing to take action requiring WVDEP to promulgate the TMDLs. In an opinion that thoroughly castigated WVDEP for its failure to make any progress on the TMDL front, Chief Judge Robert Chambers ruled that the “failure of a state to submit TMDLs is a ‘constructive submission’ to EPA of no TMDLs.” In this case, Chief Judge Chambers found that:
All of WVDEP’s plodding and EPA’s appeasement have resulted in an abjuration of WVDEP’s and EPA’s duties committed to each by the CWA. WVDEP has publically stated that it will not develop TMDLs for biologic impairment and has continued to move the goalposts for when it will begin developing them once again. Consequently, WVDEP has constructively submitted no TMDLs for biologic impairment to EPA, triggering EPA’s duty to approve or disapprove of the submission.
I don’t mean to make light of WVDEP’s failure to act. It’s fairly clear that they’ve been given instructions not to move forward with TMDLs in order to protect mountaintop removal. However, when the courts have to gin up a doctrine – constructive submission – in order to have a mechanism to require EPA to step in when states don’t comply with the Clean Water Act, I think we have pretty good evidence that the TMDL-setting process in the CWA just doesn’t work. I don’t expect Congress to do step in and fix it, but in a different world, that’s what would happen.
(I feel compelled to note that Judge Chambers did not invent the “constructive submission” doctrine. It’s been utilized in prior TMDL cases. Nonetheless, the Judge should not expect a valentine from theWVDEP next year.)