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):
Table 1 shows the budget and expenditures for fiscal years 1996 - 1998
Expenditures by Year
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
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.
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.
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.
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.
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.
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:
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.
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.
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.
West Virginia's Receipt of Section 106 Funds
Comparison of Region 3 States
|Anti-Degradation Implementation Plan Yes/No||Outstanding Water Quality Standard Disapprovals|
Years Triennial Review Overdue
|District of Columbia|
"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."
Total Appeals by Year and Average Time to Resolve
|Calendar Year||Number of Meetings||Appeals Received*||Final DecisionsÝ||Average Time to Reach Final Decisions|
|*Does not include multiple appeals on the same permit.|
ÝExcludes cases which were withdrawn or resolved by mutual consent of the parties.
Percent of Appeals Decided by Number of Months
0 to 6 Months
7 to 12 Months
13 and 24 Months
Over 2 years
|* 1998 had cases which are still pending and are therefore not included in the calculations|
"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.
EQB Appeals in the Past 5 Years Appealed to Circuit Court
|Appeal #||Date Received||Circuit Court #||Circuit Court Order Entered Date|
|98-06-EQB||35898||99-AA-57||Pending in Circuit Court|
|650||35074||Pending in Circuit court|
|607||34709||95-AA-271||1-30-98 / 2-13-98|
|Source: Environmental Quality Board|
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.