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But the settlement — proposed but not yet approved in federal court — was the latest in a string of protective measures the EPA has taken in recent weeks in response to legal challenges from West Virginia environmental health advocates that followed years of inaction from the state and the EPA itself.

West Virginia activists weren’t given the wins they’ve scored in recent weeks that are poised to benefit the state’s environmental health. They got them in fights that started in the state and ended up with the EPA, rather than the other way around.

“We are encouraged that this agreement will finally begin to get our damaged streams the help they deserve,� West Virginia Rivers Coalition interim executive director Autumn Crowe said in a March 29 statement applauding the settlement her group, the Sierra Club and the West Virginia Highlands Conservancy reached with the EPA.

‘Years of pleading, cajoling, reasoning’ on watershed

Conservationists hailed the proposed Lower Guyandotte River watershed settlement as a blow against coal mining-caused ionic toxicity pollution that makes water too salty for aquatic life and impacts drinking water quality.

Under the proposed settlement, the EPA would have to establish total maximum daily loads, known as TMDLs, for ionic toxicity for 11 waterbody segments in the Lower Guyandotte River watershed by Jan. 15, 2025. The watershed spans most of Cabell and Lincoln counties, plus parts of Boone, Kanawha, Logan, Mason and Putnam counties.

West Virginia environmental groups say the TMDLs should have been triggered, in part, by the state Department of Environmental Protection not submitting to the EPA any ionic toxicity TMDLs for the watershed.

The groups’ lawsuit cited a 2017 federal court finding that because the DEP hadn’t submitted TMDLs for waters biologically impaired due to ionic toxicity, the EPA had a duty to act. That 2017 court ruling noted that since 2006, the DEP had determined ionic toxicity was the stressor causing biological impairment in at least 179 streams but had stopped issuing TMDLs addressing biologic impairment regardless of the cause in 2012.

The 2017 court finding responded to a lawsuit that the plaintiffs in the case filed last month leading to the proposed Lower Guyandotte settlement agreement and the erstwhile, Huntington-based Ohio Valley Environmental Coalition filed in 2015 against the EPA. The groups contended the EPA had the duty to develop and issue ionic toxicity TMDLs.

Despite the 2017 court finding, the EPA didn’t develop ionic toxicity TMDLs for Lower Guyandotte River watershed streams requiring them after the DEP also failed to do so in 2022. Another year of inaction followed the Sierra Club, West Virginia Highlands Conservancy and the West Virginia Rivers Coalition notifying the EPA in March 2023 it intended to sue over the matter.

“After years of pleading, cajoling, reasoning with and finally turning to lawsuits to require appropriate cleanup plans to make whole again the waters that mean so much to so many, this agreement is a very hopeful step forward,� West Virginia Highlands Conservancy Mining Committee chair Cindy Rank said in a March 29 statement.

‘Long overdue action’ on extreme weather safeguardsEnvironmental health proponents had a similarly long legal path to get the EPA to issue a rule last month to better protect against discharges of hazardous substances caused by extreme weather events like the tornadoes and flash flooding that have wreaked havoc throughout West Virginia this month.

The EPA’s rule was over three decades in the making and followed years of pressure from advocates in Kanawha County, which has a high concentration of chemical facilities that store or use hazardous substances.

The rule requires facilities that could discharge into rivers and streams substances causing “substantial harm� to submit to the agency a “worst-case discharge� plan.

The EPA defines a “worst-case discharge� as the largest foreseeable discharge in adverse weather conditions, including extreme weather conditions due to climate change.

The EPA issued a previous rule under the Trump administration in 2019 declining to establish new requirements to prevent hazardous substance discharges following a 2015 lawsuit from national advocate groups that included Kanawha County-based organization People Concerned About Chemical Safety.

The 2015 lawsuit went after the EPA for not issuing regulations to prevent and contain hazardous substance discharges under the Clean Water Act, including from aboveground storage tanks. The lawsuit cited the 2014 spill of nearly 11,000 gallons of a coal-processing chemical into the Elk River polluted the drinking water supply of some 300,000 people.

The EPA set regulations for facility response plans for worst-case discharges of oil under the Clean Water Act in 1994. Advocates had been pushing the agency to do the same for hazardous substances under the same law.

The EPA rule signed by agency Administrator Michael Regan on March 14 was the product of a 2020 agency agreement to propose a hazardous substance worst-case discharge planning rule to settle a 2019 lawsuit from environmental health activist groups.

“We are thankful that this administration is finally taking long overdue action to protect workers and communities against chemical disasters,� Michele Roberts, national co-coordinator of the Environmental Justice Health Alliance for Chemical Policy Reform, said in a statement.

The alliance, a national network of grassroots environmental and economic justice groups, was a plaintiff in the 2019 case against the EPA that led to the new rule.

Chemical plant emission fight ‘paying off’

West Virginia environmentalist pressure also forced the EPA’s hand to clamp down last month on chemical facilities regarding emissions of a cancer-causing substance emitted regularly in the Kanawha Valley.

The EPA announced a final rule to reduce air toxics from equipment and processes chemical plants use to make synthetic organic chemicals, polymers and resins. The agency has projected the rule will reduce more than 6,200 tons a year of over 100 air toxics, including ethylene oxide, a carcinogenic gas emitted from facilities in Institute and South ÂÒÂ×ÄÚÉä that has driven up the region’s cancer risk since the EPA classified it as a carcinogen in 2016.

The two Kanawha County facilities the EPA said last year would be covered by the then-proposed rule are the Chemours Co.’s facility in Belle and Altivia’s facility in Institute. The other two facilities are Chemours’ Washington Works site in Washington, Wood County, and the former Koppers Inc. facility in Follansbee, Brooke County, acquired from the wood treatment chemical provider by Petro Empire Liquids and Storage LLC in 2021.

The EPA’s rule followed a 2021 consent decree committing the agency to finalize a new rule or decline to revise the standard for synthetic organic chemical manufacturers by March 29, 2024. The EPA agreed to that timeline in response to a 2020 federal lawsuit from environmental groups that included the Ohio Valley Environmental Coalition which alleged the agency was overdue in issuing new standards and was thus violating the Clean Air Act.

“Communities’ relentless advocacy for more protective clean air standards is paying off,� Patton Dycus, an attorney at the Environmental Integrity Project, an environmental advocacy nonprofit and plaintiff in the lawsuit, said in a statement this month welcoming the finalized rule.

Mining oversight rule strengthened amid lawsuit

It was the DEP and not Manchin that accused a federal agency of overreach after it acted under yet another rule to be strengthened by regulators at that level after years of pressure from environmental and mine safety advocates.

That rule is the Office of Surface Mining Reclamation and Enforcement’s Ten-Day Notice rule that addresses potential violations of coal mining laws, regulations and permits. The change announced by the office, known as the OSMRE, on April 4 is poised to make it easier for citizens to report concerns about surface coal mining operations.

One change to the enforcement tool will remove language requiring a citizen to first contact a state regulatory agency before contacting the OSMRE to report a possible violation of federal law that regulates surface coal mining.

That suggests less dependence for West Virginians on the DEP, which many anti-mining conservationists and environmental advocates have viewed as a rubber stamp for the coal industry in reporting concerns with mining operations.

“This is very good news for citizens like us who struggle with a Department of Environmental Protection that finds any excuse to avoid tangible enforcement,� Vernon Haltom, executive director of Raleigh County-based anti-surface mining group Coal River Mountain Watch, said in an email.

“This rule ensures that regulators will take community complaints seriously and make sure problems are addressed promptly,� Erin Savage, central Appalachian senior manager for Appalachian Voices, a North Carolina-based environmental group that has done work in West Virginia, said in a statement.

Appalachian Voices is a plaintiff in a federal lawsuit the group and other activist organizations filed against the OSMRE in January 2021 alleging the Trump-era OSMRE violated federal law by indefinitely postponing the commencement of the mandated Ten-Day Notice process and delaying a state regulatory authority obligation to act.

The groups agreed to set the lawsuit aside in November 2021 after the Biden-era OSMRE announced it was reexamining its Ten-Day Notice regulation.

The DEP objected to the OSMRE’s response to citizen use of the Ten-Day Notice last year over DEP oversight of a Boone County mine permit for which the agency extended a notice of violation over two dozen times.

The DEP extended a violation notice issued to Lexington Coal Company, a mine operator chronically delinquent in paying DEP fines for frequent environmental violations, for failure to reclaim highwall at its Twilight MTR Surface Mine 25 times from August 2021 to August 2023.

In January 2023, the DEP renewed the company’s permit for the mine despite objections from environmental advocates. The agency extended the violation notice throughout summer 2022 despite its records indicating Lexington had ceased reclamation activities from June until September.

The OSMRE issued a Ten-Day Notice on Aug. 8, 2023, after environmentalist groups objected, telling the DEP in a letter a federal inspection would occur and “appropriate enforcement action� would be taken if the latter agency didn’t act to cause the violation to be corrected.

The DEP said in an Aug. 25 letter to the OSMRE’s ÂÒÂ×ÄÚÉä field office the extension had been “erroneously grantedâ€� and wasn’t in accordance with DEP Division of Mining and Reclamation policies.

The DEP noted it had modified the violation notice to a cessation order on Aug. 24, a day earlier, and called the extended violation “an anomaly that will be corrected.�

But the DEP objected in the letter to the OSMRE’s measures leading up to the Ten-Day Notice issuance, contending it had issued the notice prior to determining whether the agency was acting in good faith to correct the violation. The OSMRE had acted in “the exact opposite of the spirit of cooperative federalism,� the DEP said in the letter signed by Division of Mining and Reclamation Assistant Director Nicki Taylor.

“[The DEP] chose to apply their ‘anomaly’ to dozens of violations across dozens of permits,� Haltom said. “In doing so, the ‘anomaly’ of breaking the law to benefit a coal company became their policy.�

Manchin suggests EPA ‘lack of accountability’

Legal fighting to hold the EPA accountable persists. People Concerned About Chemical Safety is a plaintiff in a lawsuit activists filed last year to force the EPA to revise air emission standards they say are two years overdue in violation of the Clean Air Act for a category of manufacturers that includes Union Carbide facilities in Kanawha County.

The Union Carbide sites in Institute and South ÂÒÂ×ÄÚÉä emit a carcinogenic gas called ethylene oxide and are covered by a rule for production of polyether polyols, which are used in making lubricants, soaps, adhesives and sealants. Union Carbide’s Kanawha County facilities have used ethylene oxide to make surfactants and detergents.

In February, the plaintiffs agreed to a 60-day extension of a deadline to April 19 for the EPA to respond to their complaint.

But while environmental groups cause EPA standards to tighten through the courts following years of agency inaction, the EPA faces criticism from Manchin on the Lower Guyandotte River watershed.

“[The EPA and environmental groups’] ‘sue and settle’ agreement ... bypasses the regulatory process and expands federal authority without any accountability,� Manchin said of what he said seemed to be a case of EPA and environmentalist collusion.