EPA Insists on Review of Environmental Quality Board Orders

EPA has advised the West Virginia Department of Environmental Protection and the Environmental Quality Board that it (EPA) expects to review all decisions of the Board that modify a NPDES permit. The July 13, 2011 letter from John Capacasa, EPA Region 3 Water Protection Division, references the 1982 Memorandum of Agreement (MOA) between EPA and the WV DNR (the DEP’s predecessor) in which WV assumed authority for the NPDES permit program. In the MOA, EPA waives its right to review most NPDES permits that are issued or modified by the DEP, except for certain types of permits. Among those permits EPA wants to review are those that are modified by the EQB. Mr. Capacasa has asked that all permits that are modified by an EQB order be sent to it for review. “To implement the provision in the MOA for review of permits resulting from appeals to the EQB and prevent any additional delay in permit issuance, we request that WVDEP and the EQB use the following procedure. Where resolution of the appeal would result in a permit that differs from the original draft permit, WVDEP will submit the new draft or proposed permit to EPA for review as provided in the MOA. WVDEP should include with the new draft or proposed permit any orders from the EQB relating to the permit.”

The MOA (609955) and letter from Capacasa (609946) are attached here for those who would like to review them. The May 25, 1982 amendment to the MOA that is referred to in the Capacasa letter is in the back of the  MOA.

Technically speaking, there is no authority for the EQB to remand the permit to the DEP for modification under the statute (W. Va. Code 22B-1-7(g)(1)). Therefore, one wonders whether the DEP would even have jurisdiction to submit the permit and Board order to EPA for its review and approval. This process of requiring EPA review of Board orders raises a host of interesting questions, which may be answered by an appeal recently taken by the DEP of the decision of the Air Quality Board that remanded a permit for modification. The DEP took the position in that appeal that the Air Quality Board, whose review powers are similar to the EQB’s, cannot remand a permit to the Division of Air Quality in order to have the DAQ modify the permit.

Thanks to Allyn Turner, who acquired the letter.