Region III Agenda Presents Challenges to West Virginia Business

The West Virginia Chamber of Commerce’s Environmental Committee made its annual visit to USEPA Region III on June 25, 2013 to discuss national and state environmental issues and potential impacts on West Virginia.  The meeting was well attended by Chamber members and USEPA staff.  Regional Administrator Shawn Garvin took time to welcome us and give some initial remarks which included the continuing three areas of emphasis for the region: 1) the Chesapeake Bay, 2) mountain top removal coal mining, and 3) unconventional natural gas extraction.  

With regard to air quality issues, it is worth noting that our visit coincided with the President’s announcement on climate change on that same date.  While we received good news that West Virginia’s petitions to re-designate Parkersburg and Wheeling from non-attainment to attainment areas, the agency’s hesitance to discuss the current state of its regulatory aims toward greenhouse gas emissions and controls for new electric generating facilities evidences a continued uncertainty in the area of green house gas emission controls and the fate of both old and new power generating facilities.  The President’s announcement that it would be his goal to lower overall CO2 emissions by 80 % by 2050 only heightens anxiety within the power and natural resource industries of what place fossil fuels will have in our energy future and at what cost.

Also, the region showed an increased an interest in impacts from the natural gas industry on air quality which only affirmed what we have been seeing in practice through the use of information requests under the CAA to various clients in West Virginia that while natural  gas related water impacts remain a central concern for the region, the industry can expect increased scrutiny with regard to air emissions as seen through the development of new NSPS standards.

With regard to water issues, the regulation of selenium continues to be an issue that the agency continues to struggle to address.  While the agency again reiterated its hopes to introduce a new federal water quality standard for selenium – this time by Fall 2013 – the agency did not provide any thoughts or insight with regard to Kentucky’s efforts to establish a state standard for selenium or efforts by West Virginia to potentially follow Kentucky’s lead in developing its own standard.

The region also reiterated that Conductivity and TDS remain priorities and that EPA is looking at constituent ions for potential standards and/or development of a TDS/Conductivity standard.  The agency though expressed no date or timeline for the development of such standards.  The ongoing emphasis on selenium and TDS/Conductivity only affirms the continued attention being paid to the coal industry and mountain top removal coal mining.

The region indicated that EPA was close to finalizing new ammonia criteria using acute and chronic aquatic life impacts as the basis for the standard and further stated that it was on schedule to address chloride criteria in the summer of 2014.  Also, while the region prioritized the Chesapeake Bay as an issue of concern and has encouraged states to develop nutrient criteria, it stated that EPA had no intent to develop national nutrient standards at this time.

With regard to enforcement issues, the natural gas industry and its impacts on water resources remained a point of emphasis, particularly with regard to Section 404 of the CWA.  Ongoing criminal and civil enforcement matters in Pennsylvania and West Virginia are evidence of the agency’s focus on the industry.

Finally, related to waste issues, the agency stated that its rules with regard to CCR were still in development and that a date for final issuance could not be given.  Also, the long anticipated approval of the MOA between the region and the state regarding federal recognition of West Virginia’s voluntary clean-up program was anticipated by the end of 2013.


Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying. His practice consists of cases involving permitting and regulatory requirements for natural resources, including coal and oil and gas, solid waste, water resources, underground storage tanks, voluntary remediation, and the drafting of rules and statutes related to the environment.
» See more articles by Armando F. Benincasa
» Read the full biography of Armando F. Benincasa at Steptoe & Johnson