Make Public Comment on WV/NPDES Permit No. WV0115924

Make Public Comment on WV/NPDES Permit No. WV0115924

The Construction Stormwater General Permit WV/NPDES Permit No. WV0115924 is revised every five years. Work to revise the 2012 permit was carried out by WVDEP in the fall of 2018 and a Draft Permit and Fact Sheet was released for public review in mid-September 2018, with comments accepted through October 19, 2018. A public hearing was scheduled and took place from 6:00 pm to 8:00 pm on October 9, 2018, at the Coopers Rock Training Room, WV DEP Headquarters, 601 57th Street SE, Charleston, WV 25304. After the public review period, a Responsiveness Summary was prepared by WVDEP. 

WVDEP received many comments and addressed them all in the Responsiveness Summary, issued along with the revised General Permit on January 9, 2019, effective February 9, 2019. An immediate appeal was made by the West Virginia Manufacturers Association, Jefferson Asphalt Products, and the Contractors Association of West Virginia. This permit appeal consisted of essentially all of the industry comments that had been submitted to WVDEP during the public comment period.

WVDEP had addressed those comments in their Responsiveness Summary, justifying their approach to the revised permit and providing scientific and environmentally-sound reasons why they responded how they did. Nevertheless, the outcome of the appeal was to set aside the WVDEP approach and instead to grant every single industry request for removal of protections, roll-back of water quality standards, and accession to the demands of industry, the net result of which was to eviscerate the Construction Stormwater General Permit.

This appeal was conducted with no voice or representation from the environmental community. This led to the Order for Appeals numbers 19-03-EQB and 19-04-EQB issued by the Environmental Quality Board (EQB), directing the parties (WVDEP and the Industry appellants) to settle their differences. On May 31, 2019, a settlement agreement was signed by the EQB. Thus, the General Permit was revised and is the subject of the current public notice, whose period of comment runs through September 13, 2019.

The current proposed General Permit has language which in non-negotiable. Comments will not be considered if they include or suggest any revisions that would have the effect of changing the agreement or failing to carry out the agreement of May 31, 2019. That leaves precious little to comment on, as the entire Permit was recast in the most industry-favorable way one could imagine. Every comment made by an industry commentator on the version of the General Permit that went through the public review process in September and October, 2018, was in fact granted.

WVDEP’s overall approach to permit revision, prior to this instance, was to align the WV General Permit as close as possible to EPA’s 2017 Construction General Permit, which applies to those states and tribal governments that do not possess delegated authority to run their own NPDES permitting program. West Virginia is a delegated state, but must follow the general precepts for rulemaking and environmentally-sound protection as EPA. It can be more stringent, but not less. With this new industry-centric General Permit, West Virginia has ignored this precept, gone rogue, and dares EPA to challenge their delegated NPDES authority.

RADs overall comment is that this revised General Permit is in conflict with EPA’s Construction and Development (C&D) rule requirements, that it violates NPDES-delegated authority, and should not be considered an NPDES-compliant permit.

Information to Submit a Public Comment

Read the Legal Notice (SM-73-2019) for this public comment period Here.

The Draft Permit and Settlement Agreement are available Here.

Read RAD’s full public comment Here.

Directions for Submission

Any interested person may submit written comments on the draft permit modification by addressing such to the address below within 30 days of the date of the public notice.  Such comments should be addressed to:

Director, Division of Water and Waste Management

ATTN:  Sharon Mullins

601 57th Street SE

Charleston, WV  25304-2345

Phone: (304) 926-0499, Extension 1132

Fax: (304) 926-0496

E-mail: Sharon.A.Mullins@wv.gov

The public comment period begins 8/9/2019 and ends 9/13/2019.

Comments received within this period will be considered prior to acting on the permit modification application.  Correspondence should include the name, address and the telephone number of the writer and a concise statement of the nature of the issues raised.