STATE OF WEST VIRGINIA



PRELIMINARY PERFORMANCE REVIEW
OF THE

ENVIRONMENTAL QUALITY BOARD


Inadequate Water Quality Standards

Timeliness of Appeals Process Improves


OFFICE OF LEGISLATIVE AUDITOR
Performance Evaluation and Research Division
Building 1, Room W-314
State Capitol Complex

CHARLESTON, WEST VIRGINIA 25305
(304) 347-4890

June 1999
Introduction and Background

In 1994, the West Virginia Legislature abolished the State Water Resources Board (created in 1964 replacing the Water Resources Board) and created the Environmental Quality Board (EQB). The Board operates under WV Code §22B-3-1 and is governed by several different laws and regulations (for a complete list of applicable Code and procedural rules see Appendix B). According to WV Code §22B-3-1 the Environmental Quality Board serves a two-fold purpose:

  • The Board hears appeals from the regulated community as well as concerned citizens on permitting and enforcement decisions made by the Office of Waste Management and the Office of Water Resources of the Division of Environmental Protection.

  • The Board promulgates legislative rules setting water quality standards for West Virginia's surface waters and ground waters. These standards are generally established to be in compliance with federal regulations.

    The five member Board (see Appendix A for a complete list of members) is composed of "Individuals ... who by reason of previous training and experience are knowledgeable in the husbandry of the state's water resources and with at least one member with experience in industrial pollution control." (WV Code §22B-3-1)

    The EQB is funded from the General Revenue and special revenue from the Office of Water Resources Groundwater Protection Fund. According to §22-12-9(c)(1):

    "The Groundwater Protection Fund, the moneys of which shall be expended by the director (of DEP) in the administration, certification, enforcement, inspection, monitoring, planning, research and other activities of the environmental quality board, division of environmental protection, bureau of public health and department of agriculture in accordance with legislative rules promulgated pursuant to the provisions of chapter twenty-nine-a of this code."

    Table 1 shows the budget and expenditures for fiscal years 1996 - 1998

    Table 1
    Expenditures by Year
    FYBudgetedExpenditures
    96$193,499$172,200
    97$193,709$186,561
    98$190,862$185,481

    Issue Area 1:Despite Progress, West Virginia's Water Quality Standards are Still Inadequate

    The Environmental Quality Board (EQB) is the state agency charged with promulgating legislative rules that establish water quality standards in compliance with the Federal Clean Water Act. These standards are then enforced by the West Virginia Division of Environmental Protection (DEP). Water quality standards define the water quality necessary to protect designated uses of water bodies. By Federal law, each state must specify the water uses for all water bodies in the state. Water bodies may be specified as having multiple uses. There are five categories of water usage:


  • Category A-Public Water Supply. This category is used to describe waters which, after conventional treatment, are used for human consumption.
  • Category B-Propagation and maintenance of fish and other aquatic life.
  • Category C-Water Contact Recreation. This category includes swimming, fishing, water skiing and certain types of pleasure boating such as sailing in very small craft and outboard motorboats.
  • Category D-Agriculture and wildlife uses.
  • Category E-Industrial Water Supply, water transport, cooling and power.


    The EQB has established that at a minimum all waters of the state must achieve water quality standards to maintain Categories B and C uses. Federal law does not allow a state to remove water uses that existed after November 1975. Water uses would be lost by allowing lower water quality below standards for the particular use. To maintain existing water quality and water uses, the EPA requires each state to develop an Anti-Degradation Policy and Implementation Plan which expresses the State's policy towards preventing the degradation of existing water quality and uses and the methods to implement the policy.


    The Inadequacies of the State's Water Quality Standards

    Over the last six years, the Board has worked to establish water quality standards that comply with the Federal Clean Water Act. The Board has made some progress during this time; however, there remains important areas that are deficient. An important element of water quality standards is an Anti-Degradation Policy and Implementation Plan. Currently, the state's Anti Degradation Policy has been approved by the EPA. However, this approval is conditional upon the development of Implementation procedures that are consistent with the Anti-Degradation policy. This conditional approval was granted nearly three years ago. Yet to date, the Board has not developed an Anti-Degradation Implementation Plan.

    The lack of an implementation plan indicates that the state has not developed methods on how it intends to maintain current water quality and uses. This implies that toxins and pollutants could be released into the waters of the State and impair the existing uses of specific water-bodies, along with creating potential health concerns and the loss of aquatic life.

    According to the Board, the current status of the Implementation Plan is as follows:

    "Last June the Board published draft anti-degradation implementation procedures which had been developed by a committee of agency staff members from the WVDEP, WVDNR and the Board. The procedures were developed as an amendment to the existing Water Quality Standards rule (46 CSR 1). The notice of publication was completed pursuant to the legislative rule-making requirements in the State Administrative Procedures Act. A public hearing was held after a 30-day comment period established to accept comments on the proposal. Numerous commenters requested that the Board convene a stakeholder group to review the draft procedures. The Board agreed to do so.

    The Board has developed a stakeholder group which is scheduled to begin meeting in June to review the draft implementation procedures document. The group will be assisted by a neutral facilitator. The meeting schedule will be to meet at least monthly through January of 2000. At that time, the stakeholder group will submit implementation procedures to the Board, along with appropriate recommendations, for the Board's consideration. The Board will review the document and consider the recommendations. Upon approval by the Board, the implementation procedures will be submitted to the legislature after the appropriate notice and comment procedures have been completed. Once passed by the legislature, signed by the Governor and promulgated by the Board, the amended rule will be submitted to EPA pursuant to federal Clean Water Act requirements."

    In addition, two other sections of the state's water quality standards were disapproved by the EPA in 1995. The first of the disapproved items concerns the state's approval of certain (site specific) sections of rivers to have higher contamination levels for certain pollutants than the statewide standard. In the latest disapproval letter to the State, the EPA wrote:

    The State has adopted an adequate policy to issue variances, site-specific criteria and designated use revisions. However, the State still needs to establish the scientifically defensible basis for many of the site-specific exceptions found in this section....Also, §7.2.c.D is being disapproved because it appears to provide a site specific exemption from water quality criteria without providing the opportunity for public review and comment and without demonstrating that such criteria are protective of human health and aquatic life.

    It is permissible for states to approve variances to dischargers (persons or companies) which allow them to release certain pollutants in excess of statewide standards for those types of pollutants. It is also permissible to designate certain sections of rivers to have higher pollutants than standard because natural conditions or other factors prevent statewide standards from being attained. However, as the EPA indicated, the state must provide scientifically based evidence to allow such exceptions to water quality standards and public input should be sought. The EPA did state that it has been in contact with the EQB to review these exceptions.

    The other section that was disapproved concerns the water quality criteria or the numeric values for various pollutants. The EPA's response to this section indicated:

    ...the State adopted criteria that are less stringent than those published by EPA under section 304 (a) of the CWA, without providing adequate documentation concerning the scientific defensibility of such criteria.

    States may adopt water quality criteria that are more stringent (protective) than the EPA's published criteria for pollutants. However, if the state uses less stringent (protective) criteria than the EPA's criteria, it must provide scientific justification. According to the technical advisor for the EQB, these disapprovals have been addressed in the latest packet of information provided to the EPA. The Board is waiting for the EPA's response.

    Cause and Effect of Inadequate Standards

    The process of establishing water quality standards is complicated and it requires the coordination of other agencies, public comment, and finally legislative approval. Upon legislative review some changes may be made that may not be approved by the EPA. These factors combined with a Board that has limited staff and limited time to meet, it is expected that the process may be time consuming. Another contributing factor to the length of time to achieve adequate water quality standards lies with the EPA. Currently, the Board has been waiting for several months on a response from the EPA on its latest revisions.

    An immediate impact of inadequate water quality standards is the loss of water quality and water uses. This in turn can result in the loss of aquatic life and create human health concerns. Furthermore, the delays caused by the EPA could begin to impact the state if outstanding issues are not addressed. The reason for this is that Region 3 of the EPA may be under pressure to become more forceful in addressing unresolved issues with states. This can be seen in a 1999 internal audit conducted by the Federal Office of the Inspector General (OIG):

    Water Quality standards in Maryland, Delaware, Pennsylvania, Virginia, West Virginia and the District of Columbia were inadequate in 1998, even though some deficiencies were identified as far back as 1990. Consequently, State standards do not protect the waters in Region III as intended by the Clean Water Act, and the Agency risks being sued for not promulgating adequate water quality standards. This occurred because Region III did not fully use its authority, or fulfill its responsibility, to ensure that deficient standards were corrected. Specifically, Region III did not notify states of their deficiencies, or elevate these issues to the EPA Administrator, who then would have had the authority to promulgate adequate standards.

    Ironically, four environmental groups and 12 citizens of West Virginia have recently filed a formal notice of intent to sue the U.S. Environmental Protection Agency for failure to force the Environmental Quality Board to complete its Anti-Degradation Implementation Plan.

    One of the more forceful actions that Region 3 can take against a state is to initiate the promulgation of water quality standards for the state. According to federal regulations (40 CFR §131.22):

    If a state does not adopt the changes specified by the Regional Administrator (of the EPA) within 90 days after notification of the Regional Administrator's disapproval, the Administrator shall promptly propose and promulgate such standards.

    Region 3 has been reluctant to promulgate standards. However, the only time Region 3 has elevated a standard to the EPA Administrator for promulgation was in response to a court order resulting from a lawsuit filed by an environmental group.

    Among the recommendations made in the OIG audit, the following are of importance to West Virginia:

  • Coordinate with EPA Headquarters to promulgate standards if States do not correct the inadequacies identified in the written notices.

  • Withhold a portion of Section 106 funding from any State whose Triennial Review is overdue.

  • Require States receiving grants under Section 106 of the Clean Water Act to develop and/or update Monitoring Strategies and Water Quality Management Plans. When necessary, withhold funds from States that neglect to do so.
    • The EPA has concurred with the OIG report and has made the resolution of deficient standards a priority. Representatives of the Region 3 office responded that:

    Region III's efforts to date have not been successful in moving the States forward. Likewise, EPA Region III has not used the escalation process to have the Administrator of EPA move to promulgate Federal standards or find those State standards deficient in accordance with Section 303(c)(4) of the Clean Water Act....We are aggressively attempting to remedy the outstanding WQS disapprovals and, in fact, this effort is a national priority.

    If the State does not correct outstanding disapprovals, then the EPA's Region 3 could take action to promulgate Federal standards for the State for those disapproved items. Consequently, the State would have to abide by Federal criteria instead of establishing its own criteria. This could be significant in areas where the State has promulgated less stringent criteria than those issued by the EPA without scientific justification. If the State could not comply with Federally promulgated standards, there could be a loss of Federal funds.


    West Virginia Compared to Other States in Region 3

    In comparing West Virginia with the states in Region 3, there is some good news. At least every three years, states are required to conduct a Triennial Review to evaluate the need for additional standards or revisions of existing standards. This involves holding public hearings and submitting the results to the EPA. West Virginia is the only state in Region 3 to have completed its triennial reviews on time. Concerning triennial reviews, the OIG report stated:

    Thus if hearings are not held and standards not reviewed, the public and EPA have less assurance as to the adequacy of State Water Quality standards. At the time of our audit, West Virginia was the only State within Region 3 to have completed its Triennial Reviews.

    The significance of this for West Virginia is enhanced by the strong recommendation in the OIG report to withhold Section 106 funding from any state whose Triennial Review is overdue. Region 3 representatives responded to the recommendation by stating: "The draft report recommended withholding Section 106 funding from any state whose Triennial Review is overdue. The Region is considering this and has done so in the past." Table 1 shows the disbursements of Section 106 funds for West Virginia.


    Table 2
    West Virginia's Receipt of Section 106 Funds
    1995199619971998Total
    $1,032,619$991,144$991,144$1,293,675$4,308,582

    Table 3 summarizes Region 3 states with respect to the establishment of water quality standards. All states in Region 3 currently have anti-degradation policies in effect while only two (Delaware and Virginia) have approved implementation plans and Pennsylvania has an implementation plan pending. There are currently three states in Region 3 (Virginia, Pennsylvania, and Maryland) which do not have any section of their current water quality standards disapproved by the EPA. However, it should also be noted that these three states are late in submitting their triennial reviews. As previously mentioned, West Virginia is the only state that is not overdue in conducting Triennial Reviews.



    Table 3
    Comparison of Region 3 States

    State    		Anti-Degradation Implementation Plan Yes/NoOutstanding Water Quality Standard Disapprovals
    Years Triennial Review Overdue
    West VirginiaNoYes0
    MarylandNoNo5
    District of Columbia
    No
    Yes    		1
    PennsylvaniaPendingNo1
    VirginiaYesNo3
    DelawareYesYes5


    Conclusion

    Despite the inadequacies of the state's water quality standards, the Board has made progress in addressing deficiencies over the years, and the Board has continued to work with the EPA to correct outstanding disapprovals. In a letter in response to the OIG report dealing with water quality standards, the EPA stated that:

    "In response to the West Virginia Water Quality Standards Triennial Review submitted October 12, 1993, the EPA identified 4 sections of the West Virginia standards which were being disapproved due to inconsistencies with Federal Regulations....West Virginia submitted its next Triennial Review package on August 11, 1995. In our review, EPA was able to fully remove 2 of the 4 disapproved sections from 1993. Of the remaining two issues, we were able to partially remove the disapprovals....We are currently reviewing the State's 1998 Triennial Review submission, and at this point it is premature to indicate what provisions will be found deficient. West Virginia did correct a number of issues that we have brought to its attention in our letters."

    This response indicates that the Board has been to some extent responsive in carrying out its responsibilities to establish adequate water quality standards. In fact, with respect to its timely submission of its Triennial Reviews to the EPA, West Virginia has been more responsive than all of the states in Region 3.

    Nevertheless, there are important issues outstanding that should be addressed as soon as possible. Outstanding disapproved or conditionally approved items in the state's water quality standards are at risk of being promulgated by the EPA. The loss of this authority would be significant to the state. Also, if the state cannot comply with federally promulgated standards, there would be the risk of losing federal funds.


    Recommendation 1

    The Legislative Auditor recommends that the Environmental Quality Board complete the Anti-Degradation Implementation Plan for approval by the legislative session of the year 2000.


    Recommendation 2

    The Legislative Auditor recommends that the Environmental Quality Board continue to work diligently to remove all EPA disapproved items of the state's water quality standards. It is also recommended that the Board continue in its timeliness of conducting Triennial Reviews.

    Issue Area 2:The Timeliness of the Board's Appeals Process has Improved

    Another function of the EQB is to hear appeals from the regulated community or concerned citizens on environmental enforcement issues and permit decisions made by DEP. There are several statutes that stipulate the opportunity for citizens to appeal DEP permit and enforcement decisions. Some examples of appeals received by the EQB from the regulated community or concerned citizens could be, but are not limited to, the following:


  • Issuance of Permits by DEP. Concerned citizens may object to the issuance of a permit to a company because the permit allegedly violates water quality standards or has other environmental concerns;
  • Denials of Permit by DEP, such as permits that stipulate the terms a permittee must abide by in conducting activities affecting groundwater (§22-12-11); permits regulating impounding, diverting or flooding protected streams (§22-13-11); permits regulating the operation of solid waste facilities (§22-15-16); permits regulating the installation, inspection and usage of underground storage tanks (§22-17-18); and permits regulating the storage and disposal of hazardous waste (§22-18-20).
  • Denials to modify existing permits. This could be a request to DEP to allow an increase or decrease in the level of certain pollutants that are released. It could also be a request to allow an increase or decrease in the amount of garbage (in the case of a dump or landfill) that is received and processed.
  • Disciplinary/ Enforcement actions such as fines or suspensions ordered by the DEP.


    The Board's Timeliness has Improved

    This issue examines the timeliness of the Board's decision-making function. Timeliness is important because a lengthy process could impose undue costs to parties filing an appeal. For example, an incorrect or unfair denial of a permit can impose an economic cost to the party if it prevents an individual from conducting business. The cost would be influenced by the length of time the Board takes to resolve the issue.

    In a previous performance review conducted by the Legislative Auditor's Office in 1993, the timeliness of the Board's appeal process was a concern. The previous review included calendar years 1990 through 1992 and the first half of 1993. In 1991, the average time to decide appeals was 18 months. However, Table 4 illustrates that the average time for the Board to decide an appeal has improved. By 1998, the average time has decreased to six months.




    Table 4
    Total Appeals by Year and Average Time to Resolve
    Calendar YearNumber of MeetingsAppeals Received*Final DecisionsÝAverage Time to Reach Final Decisions
    199011301812 months
    199115412518 months
    199216371117 months
    19935211015 months
    199412382410 months
    19951018108 months
    1996141465 months
    199712959 months
    19981718126 months
    *Does not include multiple appeals on the same permit.
    ÝExcludes cases which were withdrawn or resolved by mutual consent of the parties.


    Table 5 shows the percentage of the Board's appeals by the number of months it took to decide them. Over the last four years, no appeals have taken more than two years to decide. Cases that take longer than one year has also declined. Since 1995, most cases are decided within one year. This is in contrast to years prior to 1995, when a third or more of the appeals took longer than a year to decide. In three of the last four years, over 90% of the Board's decisions were decided within 12 months. This is in contrast to the early 1990's, when 50% to 60% of appeals were decided within a year.


    Table 5
    Percent of Appeals Decided by Number of Months
    Calendar
    Year
    0 to 6 Months
    7 to 12 Months
    13 and 24 Months
    Over 2 years
    19900.5000.2220.1110.167
    19910.1200.3600.3200.171
    19920.1350.2430.3200.091
    19930.3000.2000.4000.100
    19940.3750.2920.2500.083
    19950.3000.7000.0000.000
    19960.6670.3330.0000.000
    19970.2000.4000.4000.000
    1998*0.5000.5000.0000.000
    * 1998 had cases which are still pending and are therefore not included in the calculations


    Causes for the Improved Timeliness of Appeals

    One factor that contributed to the lack of timeliness was identified by the Board as a liberal policy of granting Motions for Continuances. At the time of the 1993 audit, the Board would often grant continuances that in some cases were open-ended, that is, they did not specify a date when the case would resume. This resulted in some cases being on the docket indefinitely because the Board in effect allowed the parties to dictate the resumption of the case.

    Early in 1996, the Board established a restrictive policy with respect to granting continuances through a letter to attorneys. The letter stated:

    "The new policy will affect the Board's rulings on "last minute" continuances that are often requested in order to negotiate settlements or obtain discovery. Since the Boards are now providing earlier notice of the hearing date to all parties, it is now the policy to strictly limit grants of continuances. This will apply to all cases, even those where there is a joint motion for continuance. Many attorneys agreed that if the Board would provide more notice of hearings it would greatly lessen the need for continuances. Therefore, the Board will now grant continuances only under exceptional circumstances.

    The Board changed its policy to schedule hearings two months in advance instead of two to three weeks in advance. The Board noticed that notifying both parties of hearing dates with only two or three weeks notice caused a substantial number of requests for continuances by attorneys who felt they needed more time to prepare.

    Moreover, the length of time continuances were granted for was restricted. An examination of continuances granted in 1997 and 1998 showed that each continuance had a limited amount of time they were granted for. Continuances for earlier years were not readily available, however, there were several continuances available for the early 1990's that were granted on an open-ended basis. There is evidence that the Board has taken steps to better control its docket through a more restrictive policy of granting continuances.

    Another factor that has contributed to the improved timeliness is the drop in the number of appeals that were filed with the Board. The average number of appeals received each year between 1990 and 1994 was 33, while the average dropped to 14 between 1995 and 1998. There is a strong positive correlation (0.84) between the number of appeals received and the timeliness of decisions. In other words, the more appeals received by the Board, the longer it takes the Board to make its decisions. This suggests that the drop in appeals received has contributed to the lower time averages. There is no single factor that influences the number of appeals received. Obviously, decisions made by the DEP influence the number of appeals, but so does the addition of new regulatory provisions.
    Given the strong correlation between the number of appeals received and the timeliness of the decision process, the Board should continue its progress in managing its docket to ensure that in the event appeals received increases, timeliness of decisions will not suffer.

    Appeals to Circuit Courts

    Decisions made by the EQB are subject to judicial review by the circuit court. A large number of the Board's decisions being reversed by the circuit court would suggest incorrect or possibly bias decisions. The number of judicial reviews filed and reversed decisions is relatively small. Since 1994, there have been seven (7) different appeals filed to the circuit court on five (5) separate permits. These seven permits represent less than 7% of the total appeals filed with the Board during that time period. Table 3 shows the appeals. Appeal Number 603 was dismissed from circuit court due to a lack of action by the circuit court. Appeals 595 and 594 were both appeals which dealt with the Apple Grove Pulp Mill Permit and the decision of the Board was overturned in appeal 607. In summation, only one final decision of the Board was reversed by the circuit court.



    Table 6
    EQB Appeals in the Past 5 Years Appealed to Circuit Court
    Appeal #Date ReceivedCircuit Court #Circuit Court Order Entered Date
    98-06-EQB3589899-AA-57Pending in Circuit Court
    65035074Pending in Circuit court
    6073470995-AA-2711-30-98 / 2-13-98
    6033466994-MISC-84935029
    5953458996-MISC-33835382
    5943458996-MISC-33835382
    5913457896-MISC-33835382
    Source: Environmental Quality Board

    The Board Needs A Time Standard and a Formal Expedited Process

    A lengthy appeals process has two potential effects. There are potentially environmental impacts to the state's water resources, and there can be monetary costs to appellants. Environmental impacts are minimized because an appeal to the Board, by law (§22B-1-7(d)), does not suspend the effectiveness of a decision made by DEP. Therefore, if DEP orders a company's activity to cease because it is harmful to the environment, then the order will remain in effect during the time of the appeal. On the other hand, DEP can suspend the execution of its decision during the appeal if it appears that an unjust hardship to the appellant would result. Furthermore, upon request by an appellant, the Board may grant a stay of a DEP decision for the duration of the appeal.

    However, there can be instances in which individuals are denied permits by DEP with no stay of the action granted. In these cases, the economic loss incurred by the denial of the permit would increase during a lengthy appeal. These appellants would likely want to proceed with two or three weeks notice, in which case the Board's policy of two months notice may cause an unnecessary delay. The Board has informed attorneys that:

    Upon a party's timely request, we will try to move an appeal to a date earlier on the calendar if an opening is available. A party wishing their appeal to be heard earlier than it is originally scheduled should contact the Board and make this request as soon as possible after the original hearing date is set. The Board will consider all other parties' wishes before moving the hearing date.

    The Board recognizes the potential economic costs to some appellants, and it has taken some precautionary measures to address these events. However, statute (§22B-1-7(f)) requires that the Board hold a hearing within 30 days of receiving notice of an appeal. Currently, the Board schedules hearings 60 days from the appeal notice. The Board uses the provision in the law that allows it to delay a hearing upon its own motion. Consequently, every appeal will have a motion of continuance granted for the Board giving it the extra month to schedule the hearing. It has been the Board's experience that when it has scheduled hearings within 30 days as required by statute, a party will often file for a continuance anyway. Therefore, the Board may not be causing a delay by granting its own continuance. However, the Board should recognize that since the intent of the law is to have the hearing held within 30 days of the appeal notice, priority should be given to any appeal in which both parties agree to the 30 days. The Board should consider establishing in its procedural rules a formal expedited process in which the appellant has the option for an expedited process. If both parties agree to 30 days for a hearing, such an option should be given priority to other appeals. Although timeliness has improved, the Board has not established an appropriate goal or time standard for how timely decisions should be made. State circuit courts, for example, would have a time standard of six months for the type of appeals heard by the Board. Six months may or may not be an appropriate time standard for the Board. The Board is at a disadvantage in that it cannot meet every day. Board members have a limited amount of time they can devote to hearing appeals and budget constraints also limit the number of meetings the Board can have. Nevertheless, the Board should consider establishing in its procedural rules an appropriate time standard to guide its operation.

    Recommendation 3

    The Legislative Auditor recommends that the Environmental Quality Board incorporate in its procedural rules a time standard as an operating goal towards the efficient treatment of appeals. The rules should also include a formal expedited process for appellants who choose the expedited option.