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Public Comments of the Harpers Ferry Conservancy on

WVDEP NPDES Application # WV0105724

Old Standard LLC

Public Notice # S-93-04

 

Harpers Ferry Conservancy

Post Office Box 1350

Harpers Ferry, WV 25425

(304) 535-9961/fax -9962

litigation@harpersferry.org

 

Please accept these comments on NPDES permit WV0105724 for the proposed Old Standard sewage treatment plant astride the Shenandoah River in Jefferson County, just upstream from its confluence with the Potomac River, and just downstream from the point of river access that anchors the important recreational component of Jefferson County’s tourism-based economy, in the midst of a national historic landscape.

 

The permit application is fatally flawed and is based upon misleading, incomplete and conflicting information.  Indeed, the proposed sewer plant is purported to serve a 175 house subdivision, but truly is sized to serve 3,500 new people, creating a city larger than any other in Jefferson County, in the center of a nationally treasured landscape.  The permit application will violate standards and requirements of the Clean Water Act, particularly antidegradation requirements, and thus must be rejected.  In addition, because of the likelihood of substantial and irreversible adverse impacts on nationally significant environmental, scenic, cultural and historic resources, an Environmental Assessment is mandated by the National Environmental Policy Act prior to the agency action of issuing a permit.  Moreover, because the issuance of a permit will significantly affect recognized historic resources, this permit should not be granted without a full historic review and alternatives analysis, as required under the West Virginia Historic Preservation Act and the National Historic Preservation Act.  Finally, this permit should not be granted because it will undermine and harm a major on-going effort to preserve this landscape at the confluence of the rivers and the “gateway to West Virginia” from ill-suited, incompatible development – an effort supported by Senator Robert C. Byrd, Congresswoman Shelley Capito, the Bush Administration, the State of West Virginia, and a broad coalition of organizations and citizens.  For all these reasons, a public hearing is necessary to clarify the issues surrounding this undertaking so that the public can participate in these proceedings in an intelligent and informed manner.

 

Socio-Economic Context of the Area

 

As explained further below, this proposed sewage system and permit is subject to antidegradation requirements because there is likely to be significant discharges, to Tier II protected waters, of pollutants including dissolved oxygen, bacteria, total suspended solids/turbidity, and pH.  Such degradation requires a socio-economic review to determine whether the harms and impacts of the new sewage plant outweigh its potential benefits.  Moreover, this permitting action triggers state and federal Historic Preservation Act review requirements.  It is also important to note, as explained further below, that this proposed sewage plant is being designed to serve a swath of new, ill-planned residential subdivisions that will cause impact to the area far beyond the Sheridan Subdivision and Old Standard Quarry area.  The entire landscape bordering the Harpers Ferry National Park and the confluence of the Shenandoah and Potomac rivers are put at risk by this sewer permit. 

 

For these reasons, these comments begin with background on the socio-economic and historic context and importance of the area that will be adversely impacted by the construction of this sewer system.  This information is not merely sympathetic context to the permit; the historical and socio-economic review of the impacts of these permits are legal duties that must be fulfilled by the West Virginia Department of Environmental Protection.

 

Harpers Ferry is situated on a rugged peninsula at the confluence of the Shenandoah and Potomac Rivers at the easternmost tip of West Virginia’s Eastern Panhandle.  In 1944 the Harpers Ferry National Historical Park (“Park”) was created to protect the spectacular landscape and to commemorate the historic events that occurred in and near Harpers Ferry.

 

The beauty of the area – known as the “Gateway to West Virginia” – includes the two rivers, the imposing backdrop of the Blue Ridge, Jefferson’s Rock, the Appalachian Trail, and the rural open landscape immediately outside of the Park.  Thomas Jefferson declared this landscape “perhaps one of the most stupendous scenes in Nature . . . worth a voyage across the Atlantic.”  Other participants in the history of Harpers Ferry include George Washington, Lewis and Clark, abolitionist John Brown, President Abraham Lincoln, and Frederick Douglas.  Harpers Ferry played a crucial role in the Civil War, as the ground for action by Robert E. Lee, Philip Sheridan, George Armstrong Custer, Stonewall Jackson, J.E.B. Stuart, A.P. Hill and others.  The Park hosts more than 500,000 visitors each year, making it the most visited tourist destination in West Virginia.

 

This nationally significant landscape and history does not stop at the border of the existing Park.  In 1988 Congress authorized a study by the Department of Interior to examine issues concerning lands adjacent to the Park.[1]  This study states that “visitors to the park are surrounded by a cultural richness and scenic beauty that is integral to the park experience,”[2] adding:

 

some . . . nationally significant cultural and scenic resources are privately owned and existing on lands experiencing the pressures of suburbanization.  The potential for unprecedented growth and changes from rural agriculture to residential and commercial development could destructively alter cultural and scenic resources.  The opportunity to conserve these resources is quickly fading.[3]     

 

In 2001, at the request of Senator Robert Byrd, the Department of Interior conducted an additional study and outreach program to determine whether local, state, and regional citizens were in favor of protecting the landscape at and around the confluence of the rivers from incompatible development (such as the development that will be spurred by the siting of an Old Standard Quarry sewer plant).  An overwhelming 94 percent of citizens supported the preservation of the landscape on the border of the Harpers Ferry National Park – the very landscape that is under threat from this ill-conceived sewer permit application.  The National Park Service reported this overwhelming support of this natural and tourism landscape to the Department of Interior and the White House.

 

In 2003, Representative Shelley Moore Capito, while standing on a bluff at Murphy Farm overlooking the Old Standard Quarry land, was told about the potential for developers to seek sewer permits and housing development approvals at the Old Standard Quarry.  Representative Capito publicly declared that she was in favor of protecting the landscape.  Shortly thereafter, senior Senator Robert C. Byrd introduced federal legislation to expand the Harpers Ferry National Historical Park to protect it from poorly-located development.  Representative Capito introduced companion legislation shortly thereafter, the bills made their way through the U.S. Congress and were enacted, and on September 24, 2004, President Bush signed new legislation to protect the Harpers Ferry Park and surrounding landscape. 

 

The Old Standard Quarry and its proposed 250,000 gallon capacity sewer plant sit at the center of this landscape, and is planned to serve new sewer capacity to a variety of incompatible subdivision developments that would directly conflict with this national, state, and local effort to preserve this sacred ground. 

 

One of the most important parcels of land identified for protection by the congressional study was the 100-acre Murphy Farm that abuts the Old Standard property to the immediate east.  During the 1862 siege of Harpers Ferry, in which General Stonewall Jackson led an assault on the Town as part of the South’s first invasion of the North, General A.P. Hill’s division of 3,000 men marched to and deployed on Murphy Farm during the night of September 14, 1862 via the ravine known as Alstadt’s Run or the “big hollow” that forms the common boundary between the Old Standard and Murphy Farm properties.  This maneuver proved to be the turning point of the siege, because Hill had flanked the Union left that had been formed here.  The beleaguered Union troops could not withstand the withering artillery fire from Hill’s gun on the Murphy Farm and the Confederate cannon on Loudoun Heights.  The final maneuver by Hill necessitated the Federal surrender of 13,000 troops – the largest surrender of American troops until Bataan in World War II.  In light of this history, it is likely that the Old Standard property harbors a rich trove of Civil War artifacts and shares the Murphy Farm’s legacy in American history. 

 

Beyond Civil War history, the adjacent Murphy Farm is a place of national significance for American civil rights history.  By the first decade of the 20th century, John Brown and Harpers Ferry had become symbols of the African American struggle for justice and equality.  For this reason, in August, 1906, W.E.B. Dubois, educator, editor, and writer, brought the Niagara Movement, a black civil rights organization he helped establish, to Harpers Ferry for its first public meeting.  At the time, John Brown’s Fort was located on Murphy Farm, having been moved there after the railroad bought the Fort’s original site.

 

At the culmination of the Niagara Movement conference, these civil rights leaders went to Murphy Farm, removed their shoes on this “holy ground”, and proceeded to John Brown’s Fort.  It was at this conference that the participants resolved to create an organization to represent the interests of blacks in America and, in 1909, Dubois and other members of the Niagara Movement helped form the National Association for the Advancement of Colored People. 

 

At the spot where Dubois and other American leaders vowed to form the NAACP, the view toward the Shenandoah River is dominated by the Old Standard Quarry property.  Dense development of the Old Standard property as a result of WVDEP’s issuance of an NPDES permit would destroy the integrity of the upriver view from the Murphy Farm along the Shenandoah River.  This would be a tragic result for the Nation’s patrimony.

 

In recognition of this fact, two years ago the West Virginia NAACP passed a resolution declaring that “the Murphy Farm holds a sacred place in West Virginia and national Black history and Civil War history” and that “we believe we have a duty to civil rights history to preserve the Murphy Farm and the landscape surrounding Harpers Ferry.”  (emphasis added). The West Virginia NAACP further resolved to “urge the Governor of the State of West Virginia to insure rigorous scrutiny for all state approvals necessary for the development of the Murphy Farm.”   Since the view of the Old Standard Quarry property from the Murphy Farm would be severely impacted by dense development of the Old Standard property, people of color and the NAACP clearly are stakeholders in the Old Standard NPDES proceedings.

 

In 1999, the group Scenic America named this Harpers Ferry region a “Last Chance Landscape.”  In 2001, the Civil War Preservation Trust listed it as one of the Ten Most Endangered Civil War Battlefields in the nation.  This landscape has also been nominated as one of the National Trust for Historic Preservation’s 11 Most Endangered Places in America.  Harpers Ferry, the National Park and the immediately surrounding area are a national treasure.  But this treasure would be severely threatened by the issuance of a sewer permit for the Old Standard Quarry undertaking. 

 

Ironically, on the same day (December 30, 2002) that the National Park Service took possession of the Murphy Farm – after a protracted battle over an inappropriate sewer package plant application submitted to WV DEP – the Applicants acquired the Old Standard Quarry property at a public auction at the Jefferson County courthouse.

 

In addition to historic implications, this reach of the Shenandoah River also drives the economic engine behind the recreational component of the Harpers Ferry tourism-based economy.  Collectively, the four outfitters comprising the Shenandoah River Outfitters Association, paddle some 30,000 guests per year down the Shenandoah.[4]  In addition to commercial raft trips, large numbers of self-guided paddlers transit the Shenandoah between Millville and Harpers Ferry.  On a peak weekend, some 3,000 people will transit these waters.  Issuance of NPDES permits for Old Standard, and other nearby proposed sewer plants, will not only directly jeopardize the local economy from bypass and overflow events, but will indirectly do so by destroying the natural landscape that these visitors come to enjoy.

 

 

Procedural Issues

 

The Old Standard Quarry sewer permit application is flawed by numerous procedural defects, all of which justify denial of the permit, and clearly demand a public hearing on the application.  These procedural deficiencies include violations of public notice requirements; misleading and deceptive public notice; illegalities in West Virginia Public Service Commission requirements that must be resolved before issuance of environmental permits; and violations of state and federal Historic Preservation Act requirements.  

 

The Public Notice is misleading and deceptive.

 

The Public Notice published in the Spirit of Jefferson newspaper stated that the Applicant proposes to “acquire, construct, install, operate and maintain” a collection and treatment system with an ultimate capacity of 250,000 gallons per day (GPD).  The Public Notice further states that “the facility is designed to serve approximately 3,570 persons in the Sheridan subdivision.”

 

The Sheridan subdivision is located approximately one mile northwest of the proposed treatment plant.  The Jefferson County Planning Commission approved the Sheridan subdivision for 197 homes.  Using standard planning assumptions of 2.3 persons per household, the actual population of Sheridan could be anticipated to be 453 people, not the 3,570 persons represented by the Applicant.  Using the standard consumption of 70 GPD per person, the actual wastewater treatment requirements for the Sheridan subdivision would be 31,717 GPD, not the 250,000 GPD represented by the Applicant in the Public Notice.  Given the requested wasteload is nearly 10 times the actual needs of Sheridan, something else appears to be afoot that should raise red flags of caution.

 

The Conservancy submits, and the public fears, that what the Applicant actually is proposing is a new unincorporated city with a population larger than that of any of Jefferson County’s five currently incorporated cities, and that would increase Jefferson County’s population by nearly 10%.[5]  This in and of itself mandates a public hearing to clarify the Applicant’s actual intentions and plans.

 

Given the Old Standard Quarry is sandwiched between two major properties administered by the National Park Service, creating a new city amidst one of the Nation’s most complex aggregations of historic and cultural resources most certainly will have adverse and avoidable impacts upon those cultural and historic resources.  This fact in and of itself is sufficient to trigger the preparation of an Environmental Assessment (EA), and may be of sufficient magnitude to require preparation of an Environmental Impact Statement (EIS), under the National Environmental Policy Act. 

 

Moreover, WVDEP can not issue such a permit unless and until compliance with Section 106 of the West Virginia and National Historic Preservation Acts (NHPA) has been performed and properly certified.  Since the scope of this undertaking has been neither defined nor explained for the public, a public hearing is necessary before WVDEP can proceed.

 

Beyond the scope and nature of this undertaking, a question arises as to whether the Applicant actually intends to “operate and maintain” the sewerage treatment plant as stated in the Public Notice. 

 

In fact, this is a materially false assertion for the reason that on May 3, 2004 the Applicant entered into certain agreements with the Jefferson County Public Service District for the latter agency to do so.[6]  This is somewhat ironic since several months ago, JCPSD held a meeting to make a limited disclosure of its intention to construct and operate another sewerage treatment plant with 2,000,000 GPD capacity just one-half mile to the west of the Old Standard Quarry on the Shenandoah Quarry property.  That meeting created the impression that JCPSD only sought to serve portions of the Flowing Spring watershed, and that it had abandoned its ill-conceived attempts to provide service to the border of the National Park and the area served by the facilities described in this application.[7]  It now appears that JCPSD, the Applicant, and other persons are engaged in a common scheme or enterprise to circumvent or subvert appropriate and relevant Federal and State regulations to the detriment of the public good.

 

Required public notice procedures were not followed for this permit.

 

In August 2003, DEP signed an agreed dismissal order regarding NPDES permit appeal 03-09-EQB to the Environmental Quality Board and agreed to start fulfilling their public notice responsibilities under state regulations (47 CSR 10-12.1.c.1.F). DEP subsequently created “area lists” for each county and began sending public notices by e-mail to people signed up for each county.

 

The public notice for the Old Standard permit was not distributed to the Jefferson County or the statewide area lists. Nor was the notice of the Old Standard permit provided to any of the citizens or organizations that have spent years in dispute with WV DEP regarding the issuance of an inappropriate sewer permit on the adjacent Murphy Farm property.  This is in clear violation of 47 CSR 10-12. It also violates federal NPDES public notice regulations at 40 CFR 124.10(c)(1)(ix). DEP must therefore re-start the public notice process by sending the public notice to the appropriate area lists.

 

Persons associated with the Conservancy subscribe to WVDEP’s online notification system for the specific purpose of receiving timely notice of any NPDES applications in Jefferson County.  The Conservancy asserts that neither it, nor any of these interested persons, received notice of this Application via WVDEP’s online notification system.  Thus, we submit that those persons relied to their detriment on WVDEP’s representations that all such applications would be promptly and automatically brought to the attention of any interested person.  As a result, we and they were denied due process.

 

Had the filing of this Application not been belatedly discovered by other means, grave harm to the public interest might have resulted, and may presently be occurring, because persons who in good faith relied upon WVDEP’s representations that the online system was automatic and foolproof may not have received any notice of the application and, thus, may not be requesting a Public Hearing.  As their surrogate, the Conservancy requests on our own and their behalf that a Public Hearing be scheduled and widely announced in order to rectify any failure of, or discrepancy in, any WVDEP Public Notice.

 

The public notice, online permit information, wasteload allocations, and other information in the permit file are inconsistent.

 

The public notice, online permit information, wasteload allocations, and other information in the permit file are inconsistent regarding the plant design flow and the number of people served. This information should be clarified and the public notice process should start again after it is clear what, exactly, is being proposed.

 

The public notice states: “Old Standard LLC plans to construct and operate a wastewater collection and a 0.05 million gallons per day (expandable to 0.25 mgd)…wastewater treatment plant to serve 3,570 people…”

 

The West Virginia Department of Environmental Protection’s (DEP’s) Web site, searched 10/28/04, states that this facility has a design flow of 0.05 mgd and that it will serve only 178 customers.

 

Two wasteload allocations were granted by DEP on 7/12/04. One is for 1,785 people and a 0.125 mgd design flow. The other is for 3,570 people and a 0.25 mgd design flow.

 

In the permit file, Old Standard’s 7/04 permit application for DEP and West Virginia Bureau of Public Health permits states that the treatment plant will serve 534 people in 178 single family dwellings (Appendix A, Third page of Form SJ NPDES Sewage form dated 8/4/04).

 

DEP is responsible for providing accurate information when the public notice is issued. DEP must clarify (1) the plant’s design flow, (2) how many people will be served from subdivisions, hotels, schools, and other types of sewage input, and (3) how many gallons per person per day are assumed for each type of input to the treatment plant.  Having failed to do so, the permit is flawed and must, at the least, be clarified at Public Hearing.

 

Authority to operate a wastewater treatment plant must be obtained before an NPDES permit to do so is issued.

 

Under West Virginia State law, the West Virginia DEP may not issue any NPDES (or other) permit for the Old Standard Quarry sewer plant unless and until the plant is issued a certificate of public convenience and necessity by the West Virginia Public Service Commission (“PSC”).  Because the Old Standard developers are engaged in an elaborate and illegal scheme to avoid PSC jurisdiction, the DEP is not legally authorized to issue the NPDES permit. 

 

The Old Standard Quarry developers are engaged in a scheme under which they seek to avoid PSC jurisdiction.  This scheme was described in a September 14, 2004 Motion filed by PSC Staff in litigation currently before the Commission.  Sheeley v. Jefferson County Public Service District, Old Standard LLC, and Thorn Hill LLC, Case No. 04-1026-PSD-C (attached in entirely here).  The PSC staff describes the scheme as follows:

The plan is that, before the Jefferson County Public Service District even applies for a certificate [of public convenience and necessity], the Developers will by deed convey the site of the treatment facility to Jefferson County PSD; Jefferson County PSD will then lease the land back to the Developers; the Developers will then construct the treatment facility, Jefferson County PSD will then operate the facility for a period of time. It is only after all of these steps have taken place that Jefferson County PSD plans to file for a certificate. If Jefferson County PSD and the Developers are allowed to proceed with this shell game, they plan to design, size, site and construct sewer utility plant to service in excess of 800 customers in Jefferson County in advance of obtaining the required certificate of convenience and necessity.

It is obvious to the Staff that Jefferson County PSD and the Developers have decided that it is better to go around regulation that to go through the process and permit fair public input into the sewer needs of Jefferson County, West Virginia.

 As further explained by WV PSC Staff, it is not legal for applicants to seek or receive licenses or permits from any other government agencies – including NPDES permits from the WV DEP – until the proper PSC certificates of public convenience and necessity are obtained.  As stated by the PSC Staff (with emphasis added):

The actions of Jefferson County PSD and the Developers demonstrate a willful intent to violate the provisions of West Virginia Code § 24-2-11, which states in part:

No public utility, person or corporation shall begin the construction of any plant equipment, property or facility for furnishing to the public any of the services enumerated in Section [§ 24-2-1], Article 2 of this chapter, nor apply for, nor obtain any franchises, license or permit from any municipality or other governmental agency, except ordinary extensions of existing systems in the usual course of business, unless and until it shall obtain from the Public Service Commission a certificate of public convenience and necessity requiring such construction, franchise or permit.

Jefferson County PSD and the Developers have created an elaborate, sale, lease, conveyance scheme in an attempt to thwart the Public Service Commission's proper regulation of sewer utility services in Jefferson County. This is an outrage.

This application for an NPDES permit at Old Standard Quarry cannot be applied for, and cannot be obtained, because these developers have shirked their legal duty to obtain a sewer certificate of public convenience and necessity.  For this reason alone, the NPDES permit should be rejected.

 

The Applicant’s undertaking is likely to have adverse and irreversible impacts on nationally significant cultural and historic resources of such a magnitude that compliance with historic review provisions of the West Virginia Historic Preservation Act, and Section 106 of the National Historic Preservation Act, is mandated prior to issuance of an NPDES permit.

 

The West Virginia Department of Environmental Protection (WVDEP) issues NPDES permits under delegated authority from the US Environmental Protection Agency (EPA) under Section 205(g) of the Clean Water Act.[8]  This undertaking is subject to the historic review provisions of the West Virginia Historic Preservation Act.  In addition, the provisions of EPA’s regulations implementing the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) are applicable.[9]  In addition, other relevant statutes, regulations and Executive Orders establish review procedures independent of NEPA and NHPA.[10]

 

The unique setting of the 400-acre Old Standard Quarry property where the Applicant proposes to locate its sewerage treatment plant raises regulatory issues that WVDEP typically does not encounter in its review of most NPDES applications.  Located on the western flank of Harpers Ferry, the Old Standard property abuts the Murphy Farm to the east, and the 327-acre Old Standard Farm property to the west.  The latter property is about to be transferred from the US Fish and Wildlife Service to the National Park Service.  The rugged Old Standard Quarry property also enjoys about 1.5 miles of Shenandoah River frontage along the river’s western banks.  It is the last major piece in a complex land preservation puzzle.

 

If the Old Standard property is not converted to high density development, given other nearby major landholdings, a vast 4,000 acre area will be spared from the need for sewer, water and other public services which are incompatible with this landscape.  Thus it may be seen that the issuance or denial of an NPDES permit is an outcome determinative issue for the nationally significant Harpers Ferry cultural landscape.  In light of this fact, it is imperative that WVDEP and EPA exercise heightened scrutiny in their review of this application.

 

Harpers Ferry is a revered icon in American history and one of the most complex cultural sites in the National Park System requiring rigorous NEPA and NHPA compliance work.[11]  On September 24, 2004 President George W. Bush signed legislation expanding the Harpers Ferry National Historical Park to include lands abutting and adjacent to the Old Standard Quarry property where the Applicant proposes to construct its sewerage treatment plant.[12]  Given some 4,000 persons commented on this legislation, and 94% spoke in favor of expanding the Harpers Ferry park, the Applicant’s undertaking is likely to be controversial.  That in and of itself triggers NEPA and NHPA review. 

 

National Register eligible or listed properties impacted by this Quarry sewer permit undertaking include but are not limited to:

 

 

Issuance of an NPDES permit for the Old Standard undertaking will significantly affect, both directly and indirectly, cultural resources including cultural landscapes, archeological and historic sites; rare, threatened and endangered species and their habitats; and environmentally important natural resource areas.  In addition, the project will significantly affect the pattern and type of land use, the character of existing residential areas and farmlands, and the growth and distribution of population.

 

Implementation of the proposed action will adversely affect parklands, preserves, other public lands, and areas of recognized scenic, recreational, archeological or historic value.  The undertaking also potentially could cause irreparable loss or destruction of significant scientific, prehistoric, historic or archeological data.

 

The Murphy Farm precedent mandates that DEP hold a public hearing.

 

Precedent for holding a public hearing was previously established by WVDEP in the case of the abutting property, the Murphy Farm,[13] even though the proposed 70,000 GPD capacity for that undertaking was much less than the 250,000 GPD proposed in the Old Standard undertaking. 

 

The necessity to perform Section 106 compliance prior to issuance of an NPDES permit was asserted by the West Virginia Division of Culture and History.[14]  The Advisory Council on Historic Preservation affirmed this.[15]  WVDEP’s failure to discharge these legal duties led the Environmental Protection Agency to withdraw the Agency’s waiver for review of the draft NPDES permit for the Murphy’s Landing undertaking.[16]  Even though the application was abandoned when the applicant agreed to sell the Murphy Farm to the National Park Service, the precedent established in that case establishes the necessity for WVDEP to require a review when it is put on notice that an undertaking is likely to have significant adverse impacts on nationally significant cultural or historic resources.

 

This mandate is amplified by the fact that the Murphy Farm property that abuts the Old Standard property is now owned by the National Park Service as part of the Harpers Ferry National Historical Park.  Thus, these principles are equally applicable to the Old Standard undertaking.  The legal necessity for a public hearing on the Old Standard application is clear.

 

Substantive Issues

 

Beyond the procedural flaws in the proposed sewer permit, there are a number of substantive flaws under the requirements applicable by Clean Water Act and NPDES regulations.  These include several violations of antidegradation requirements; improperly calculated discharge limitations to backwater areas; failure to consider the cumulative impact of the Standard Quarry sewer together with other current and proposed sewer projects; and the discharge of sewer effluent into a highly used recreational water.

 

Antidegradation Issues.

 

The proposed Old Standard sewage treatment plant is clearly a new discharge that will serve new subdivisions that are not yet built. Therefore, antidegradation regulations apply.  Under antidegradation requirements, the discharge stream for the Old Standard Quarry, the Shenandoah River, would be classified as a “Tier II” water.  A “significant” discharge of regulated pollutants to a Tier II water occurs when a discharge of a pollutant exceeds 10 percent of the assimilative capacity of that water for that pollutant.  As explained below, the Old Standard sewer permit violates law by arbitrarily assigning improper significance thresholds in the permit; and also by failing to require the socio-economic review that is mandated by law from the significant degradations anticipated from this source.

 

In 2001, the U.S. Environmental Protection Agency Region 3 objected to a West Virginia Department of Environmental Protection’s (DEP) draft NPDES permit for a new wastewater treatment plant on the adjacent Murphy Farm property, citing antidegradation grounds. In particular, acting regional administrator Thomas C. Voltaggio terminated EPA’s waiver for review of the draft permit and lodged an interim objection to the draft permit in a July 16 letter to DEP Office of Water chief Allyn Turner. Then, in an October 12 letter to Ms. Turner, Region 3 Water Protection Division director Rebecca W. Hanmer specifically objected to the draft permit because DEP’s record was incomplete regarding how the permit satisfies antidegradation regulations. DEP did not address these concerns and did not issue the permit.

 

Since 2001, West Virginia’s antidegradation implementation procedures have been litigated and clarified.[17]  In light of these developments, the proposed Old Standard permit contains even more substantial problems regarding antidegradation issues than the Murphy Farm permit.

 

According to the antidegradation federal court ruling, DEP cannot arbitrarily assign “significant” levels of degradation for selected parameters. Yet, DEP has done just that for the Old Standard Quarry sewer permit application.  DEP cannot use an arbitrary process for dissolved oxygen as they did in the Old Standard draft permit, and must make specific antidegradation calculations for bacteria, total suspended solids/turbidity, and pH. DEP has not implemented antidegradation for all pollutants and the draft permit is therefore illegal.

 

Moreover, it is anticipated that the properly (and legally) calculated discharges of these pollutants from the Old Standard sewer, including dissolved oxygen, bacteria, total suspended solids/turbidity, and pH, will lead to degradation of this Tier II water.  This would trigger the requirement for a full socio-economic review, which makes all of the historical, economic, and cultural issues discussed herein legally relevant.

 

Cumulative impacts from other nearby sewage treatment plants.

 

DEP appears not to have considered the possible cumulative impacts to the Shenandoah River from other nearby sewage treatment plants. In particular, the existing Charles Town plant, currently seeking expansion, discharges to Evitts Run, which flows to the Shenandoah upstream from the proposed Old Standard facility. The Jefferson County PSD is seeking to build a new 2 million gallon per day facility upstream from the proposed Old Standard facility. Principals associated with the Old Standard developers are also proposing a nearby 0.30 mgd facility to service other nearby properties they own or control on the Shenandoah River (a controversial development known as “Thorn Hill”).

 

The basis for limitations and the discharge limitation calculations found in the permit file give no indication that these other large nearby facilities are considered, which makes the permit application legally insufficient.

 

Discharging to a backwater area.

 

DEP inspector Kevin Lilly, in a 2/24/04 memo in the permit file, notes that the proposed discharge location may be in a backwater area instead of the main river channel. If this is true, then the treated wastewater is not likely to mix as assumed in DEP’s model. Discharge limitations are therefore probably too lenient. DEP must clarify whether or not the proposed facility will discharge to a backwater area and, if so, must revise its calculations accordingly.

 

Discharging to a river segment with high recreational use.

 

Mr. Lilly also notes that the proposed discharge location is just downstream from a commercial rafting company launch site utilized by the area’s four commercial river outfitters that comprise the Shenandoah River Outfitters Association, as well as by countless paddlers who privately paddle this spectacular reach of the Shenandoah River.[18]  This obviously is a sensitive location for a new wastewater discharge, and even more so considering the other new and expanded wastewater discharges proposed for the area. Considering the importance of this segment of the Shenandoah River for the local economy, and considering the potential health threat to the thousands of people who boat and swim in the river each year, DEP must take the utmost care in writing a stringent permit and in preventing permit violations in this “recreational contact” reach of river.  More frequent monitoring of discharges from this facility should also be included in the permit. 

 

Conclusion

 

As stated above, these are the Conservancy’s Preliminary comments in response to the Public Notice.  The Conservancy reserves the right to further supplement these comments, particularly because the required public notices have not been given, and are misleading and confusing.  The Conservancy and a coalition of other supportive organizations intend to submit more substantive and detail comments supplementing the issues already raised herein.  There are a number of flaws in the permit that justify its rejection.  That being said, the Conservancy submits that, for the procedural and substantive reasons set forth above, an abundance of red flags of caution are waiving that, individually, justify the convening of a Public Meeting in Jefferson County, in order to provide the Applicant an opportunity to clarify these issues.  Taken collectively, these red flags represent a myriad of justiciable issues that WVDEP should not ignore.  The Conservancy is confident that WVDEP will do the right thing, and that it will require a public meeting so that these issues can be clarified and explained to the public so that they can participate in these proceedings in an intelligent and informed manner.

 

The Harpers Ferry Conservancy also invites the WV DEP officials responsible for these decisions to visit the Harpers Ferry National Park, Murphy Farm, and other properties bordering the Old Standard Quarry property, in order to understand the major, harmful impact that this sewer plant could bring to our community. 

 

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA
CHARLESTON

CASE NO. 04-1026-PSD-C

SUSAN RISSLER SHEELEY,

Complainant,

v.

JEFFERSON COUNTY PUBLIC SERVICE DISTRICT, OLD STANDARD, LLC; and THORN HILL, LLC

Defendants.

STAFF'S OPPOSITION TO MOTION TO DISMISS

Now comes the Staff of the Public Service Commission of West Virginia (Staff), by its Counsel, to respectfully request that the Administrative Law Judge assigned to these matters deny the motions to dismiss filed by Jefferson County Public Service District (District) on July 16, 2004; as well as the more recently filed motion to dismiss of Old Standard, LLC and Thorn Hill, LLC (collectively known as the Developers) on September 7,2004. In support of this motion the Staff offers the following:

On July 6, 2004, Susan Rissler Sheeley filed a formal complaint against Jefferson County Public Service District (District), a public utility. Ms. Sheeley alleged that the District was attempting to construct new waste water treatment plants and the collection lines, through agreements with Developers, without first obtaining a certificate of convenience and necessity from the Commission pursuant to West Virginia Code § 24-2-11.

By its Answer and Motion to Dismiss Prior to Hearing, Jefferson County PSD acknowledged that it had entered into asset purchase agreements with Developers. Further the District states that it will file an application for a certificate of convenience and necessity once it has gathered the materials necessary to support such application.

On August 17,2004, the Staff filed "Staff's Motion to Join Old Standard, LLC and Thornhill, LLC, as Defendants and Require Them to File an Answer".

On August 26, 2004, the Commission entered an order naming Old Standard, LLC and Thornhill, LLC, as defendants in this matter and requiring them to file answers within ten (10) days.

On September 7, 2004, the Commission received an Answer and Motion to Dismiss on Behalf of Old Standard, LLC and Thornhill, LLC.

The Developers readily admit that they have entered into agreements with the Jefferson County PSD under which "the Developers will construct wastewater treatment plants for their real estate developments in Jefferson County and have them operated by, and eventually acquired by, Jefferson County PSD". Further the Developers denied that Public Service Commission approval is required for the Developers to construct wastewater treatment plants or for Jefferson County PSD) to operate them for the Developers.

The actions of Jefferson County PSD and the Developers demonstrate a willful intent to violate the provisions of West Virginia Code § 24-2-11, which states in part:

No public utility, person or corporation shall begin the construction of any plant equipment, property or facility for furnishing to the public any of the services enumerated in Section [§ 24-2-1], Article 2 of this chapter, nor apply for, nor obtain any franchises, license or permit from any municipality or other governmental agency, except ordinary extensions of existing systems in the usual course of business, unless and until it shall obtain from the Public Service Commission a certificate of public convenience and necessity requiring such construction, franchise or permit.

Jefferson County PSD and the Developers have created an elaborate, sale, lease, conveyance scheme in an attempt to thwart the Public Service Commission's proper regulation of sewer utility services in Jefferson County. This is an outrage.

The plan is that before the Jefferson County PSD even applies for a certificate, the Developers will by deed convey the site of the treatment facility to Jefferson County PSD; Jefferson County PSD will then lease the land back to the Developers; the Developers will then construct the treatment facility, Jefferson County PSD will then operate the facility for a period of time. It is only after all of these steps have taken place that Jefferson County PSD plans to file for a certificate. If Jefferson County PSD and the Developers are allowed to proceed with this shell game, they plan to design, size, site and construct sewer utility plant to service in excess of 800 customers in Jefferson County in advance of obtaining the required certificate of convenience and necessity.

It is obvious to the Staff that Jefferson County PSD and the Developers have decided that it is better to go around regulation that to go through the process and permit fair public input into the sewer needs of Jefferson County, West Virginia. This is obvious because Jefferson County PSD and the Developers have been before the Public Service Commission on the issue of the construction of two (2) plants by these same Developers in Jefferson County in Commission Case Nos. 03-l543-PSD-PC and 03-l544-PSD-PC.

The Staff is amazed at the great lengths that the Jefferson County PSD and the Developers have been going through since September of 2003, to avoid the Public Service Commission's regulation of sewer service facilities in Jefferson County and public input into that process. If the plan of Jefferson County PSD and the Developers is reasonable, in that it will provide for proper plant design, size and location; it will withstand the scrutiny of Public Service Commission review. Furthermore, the public comment process affords proper due process rights to members of the communities to be affected by new sewer construction to provide their valuable input. This process must not be thwarted by permitting Jefferson County PSD and the Developers to create a shell game of ownership, leasing and construction of sewer facilities such that the only matter the Public Service Commission is then presented with reviewing is the final asset transfer. Furthermore, while Jefferson County PSD(1) claims it is the "only utility involved in these plans" the Staff notes that an entity can be defined as a utility by its actions, not just what it calls itself.

Wherefore the Staff respectfully requests that the Administrative Law Judge assigned

WHEREFORE, based upon the foregoing reasons, Staff prays for a Commission Order granting this Motion.

Respectfully submitted this 14th day of September 2004.

STAFF OF THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA
By Counsel,
RONALD E. ROBERTSON


[1] Harpers Ferry National Historical Park Special Boundary Study, October 1989.

[2] Id, at p. 1.

[3] Id, at p. 5.

[4] Per Shenandoah River Outfitters Association President Lee Baihly.

[5] The Old Standard Quarry applicants have sought repeatedly to avoid the zoning restrictions on high density development that have applied to the 400+ acre property.  Likewise, the applicants have already bulldozed Civil War trenches, chopped trees, and cleared land for what is expected to be a future application for a major townhouse development on the Civil War battlefield near the Old Standard Quarry.  Although none of these inappropriate developments are mentioned in the Old Standard Quarry NPDES permit application, a huge sewer plant, sized ten times larger than needed for the purported purpose, will certainly make these subdivisions possible.  The Conservancy notes that under the current Jefferson County zoning system, rural land (like most of the Quarry) typically cannot be developed without available sewer capacity.  Thus, the construction of a major sewage system will fundamentally change background zoning.  While it is not the responsibility of WV DEP to handle local zoning matters, it certainly is DEP’s duty to examine and disallow intentionally deceptive sewer permit applications that are likely to have a wide variety of adverse impacts on legally protected interests.

[6] May 3, 2004 Minutes of Jefferson County PSD board meeting: “Herb Jonkers presented new agreements for approval for sewer facilities from Old Standard LLC/Real Estate Purchase Agreement, for O&M Agreement, for Asset Purchase Agreement and for Ground Lease – Jack Lantzy made a motion to approve the documents as presented and authorize the Chairman to execute the Real Estate Purchase Agreement, the O&M Agreement, the Asset Purchase Agreement, and the Ground Lease Agreement on behalf of the District.  Joe Hankins seconded the motion.  Approved 3-0.”

[7] August 9, 2004 JCPSD meeting in Charles Town, WV.

[8] The NPDES permit program was delegated to OWR by the US Environmental Protection Agency in 1982.  That permit was combined with the West Virginia Water Pollution Control Permit to create a WV/NPDES permit under state authority contained in West Virginia Code, Chapter 22, Article 11.

[9] 40 CFR 6-100 through 6.1007.

[10] These include, among others, the Historic Sites Act of 1935, 16 U.S.C. 461, et seq.; the Archeological and Historic Preservation Act of 1974, 16 U.S.C. 469, et seq.; the Endangered Species Act, 16 U.S.C. 1351, et seq.; the Farmland Protection Policy Act, 7 U.S.C. 4201, et seq.; and Executive Order 11593 entitled Protection and Enhancement of the Cultural Environment.

[11] Letter dated December 19, 1997 from Harpers Ferry National Park Superintendent Donald Campbell to Daniel Phythyon, Chief, Wireless Telecommunications Bureau of the Federal Communications Commission.

[12] S.B. 1576.

[13] NPDES Application number WV0105636.

[14] Letter dated June 8, 1999 from Susan M. Pierce (Deputy State Historic Preservation Officer) to WVDEP Director Michael McCabe.

[15] Letter dated April 27, 2001 from ACHP Director Don L. Klima to EPA Region III Administrator Thos Voltaggio.

[16] Letter dated August 15, 2001 from Rebecca W. Hammer, Director of EPA Region III Water Protection Division to Allyn G. Turner, Director of WVDEP’s Division of Water Resources.

[17] Ohio Valley Environmental Coalition, et al., v. Marianne Lamont Horinko, Acting Administrator, United States Environmental Protection Agency. U.S. District Court for the Southern District of West Virginia, Huntington Division. Civil Action No. 3:02-0059.

[18] Per Lee Baihly, President of the Shenandoah River Outfitters Association.