The Charleston Sanitary Board has filed a lawsuit against the Environmental Protection Agency for failing to take action on its proposed copper standards that were submitted to the agency last June.
A complaint filed Thursday in U.S. District Court naming the EPA and Administrator Gina McCarthy claims the agency's inaction on CSB's copper standards subjects the board to "incorrect and overly stringent limits" for copper discharges from its treatment plant.
Following the EPA's protocol for developing a site-specific "water effect ratio" for the Kanawha River at its treatment plant, the board submitted a site-specific copper criteria to the state Department of Environmental Protection on June 25 last year.
After the state Legislature passed the DEP's revised water quality standards in 2015, which included CSB's copper standards, the EPA consulted with the U.S. Fish and Wildlife Service for approval.
The Fish and Wildlife Service said it would not concur with the standard "until a survey of mussel species" was conducted in the Kanawha River near CSB's treatment plant, according to the complaint.
The EPA then notified the DEP it would not take action on the standards until it was approved by the Fish and Wildlife Service.
In October, EPA Region 3 Water Protection Division Director Jon Capacasa sent a letter to the DEP's Division of Water and Waste Management Director, Scott Mandirola.
The letter stated the EPA is "still considering the potential impact of this site-specific criterion on federally listed threatened and endangered species and is not taking ... action at this time."
In the complaint, CSB contends that under the Clean Water Act, the EPA has a "nondiscretionary duty" to either notify a state within 60 days that its water quality standards are approved, or notify it within 90 days that the standards are denied.
The complaint alleges that the CSB's compliance schedule expired on Dec. 31, 2015, making it subject to overly strict permit limits for copper "that are based on the default national copper criteria, rather than the site-specific criteria the Plaintiff has invested substantial resources in developing."
CSB's discharge permit provides that if the board doesn't have a water-effect ratio for copper, it must design and build upgrades to its outfall structure.
Such upgrades, CSB Operations Manager Tim Haapala said, would cost millions of dollars in plant improvements.
Reach Elaina Sauber at elaina.sauber@wvgazettemail.com, 304-348-3051 or follow @ElainaSauber on Twitter.