Who's Tougher on Environmental Issues - Feds or State?

Some people believe that state environmental agencies are too protective of state businesses, at the expense of the environment. But as this article from the Elkhart Truth points out, states can, and do, apply a more stringent interpretation of the law than EPA does. This interpretation of whether a certain type of dust at a steel plant is a hazardous waste is a case in point. EPA had issued guidance that the waste was not a hazardous waste, but Indiana said that it is. Indiana has been delegated the Resource Conservation and Recovery Act (RCRA) program, which allows the state to make these types of hazardous waste decisions.

The relationship between the states and the feds is very complex when it comes to implementing environmental programs, and perhaps it is a disservice to even speak about who is tougher. Many environmental programs are national in scope, like the Clean Water Act , RCRA or the Clean Air Act. Implementation of the programs is usually delegated to states, which then administer them in lieu of the EPA. In West Virginia, there are Memoranda of Agreement and other "contracts" between EPA and state officials which spell out what the state has to do to maintain authority for an environmental program, such as issuance of NPDES permits or setting of water quality standards. In other cases, EPA approves state rules, such as those for issuing air permits.

For the WV DEP, implementing federal environmental programs can be a bit of a tightrope walk. In order to receive approval to run a federal program like the NPDES system (i.e., the wastewater discharge permit program) the state has to promise to adopt rules that are at least as stringent as the federal rules. However, there are also requirements that the state environmental rules not be more stringent than federal rules (W.Va. Code 22-1-3a). The result is that the DEP often adopts rules that are word for word the same as federal rules, and relies on EPA's interpretations of those rules. (Evidently, Indiana does not have this "no more stringent than federal rules" requirement in its state code, at least as it applies to RCRA.) This dichotomy between rules that have to be as stringent as federal rules, but no more stringent, becomes especially difficult when there are no federal rules to follow, as sometime occurs with the setting of water quality criteria. But that's a subject for a later day.