The West Virginia Senate Thursday passed a rules bill that contains a controversial regulation that sets limits on the amount of pollution that can be discharged into the state’s rivers and streams.
The Senate voted 20-12 to approve Senate Bill 163. The bill contained a series of environmental rules including the state’s Water Quality Standards.
The West Virginia Department of Environmental Protection (DEP) proposed the Water Quality Standards rule last July. The agency proposed adopting 60 of the 94 updates to human health criteria the U.S. EPA released in 2015.
The proposed pollutant updates — two-thirds of which make it so less of certain chemicals can be discharged into rivers and streams and one-third of which loosen pollution levels — have proved controversial.
In November, the West Virginia Manufacturers Association asked the Legislative Rulemaking Review Committee to remove the updates. The trade group also asked DEP to hold public meetings to gather more state-specific data that could affect the pollution limits set in the regulation.
During a 15 minute floor recess last Friday, the Senate Judiciary Committee voted to once again remove the updates and gave industry more time to do its own study. Under the committee substitute, DEP must propose updates to the human health criteria in the rule before April 1, 2020 and put them out for public comment. The agency will submit the proposed updates for consideration by the 2021 legislative session.
Speaking on the Senate floor before the vote, Judiciary Chairman Charles Trump (R-Morgan) characterized the committee substitute as a “reasonable compromise.”
Environmental advocates disagree. In a letter sent earlier this week, the West Virginia Rivers Coalition and 23 other environmental and conservation groups said industry already had three years to present new evidence. They argue not adopting the proposed updates means the state is relying on standards issued in the 1980s and 90s.
They also said the committee substitute created by the Judiciary Committee was unfairly assembled. At a stakeholder meeting held prior to the vote, West Virginia Rivers Coalition Executive Director Angie Rosser said environmental adovcates were told to limit participation. Industry brought more than 30 representatives.
“We appreciated your apology relating it was not your intent to set up the meeting dynamic in the way it turned out, and your stated commitment that we would be afforded the opportunity to bring forth scientific experts when the committee would take up the bill,” she stated. “It turned out we were not afforded that opportunity. As a result, you and your committee did not take sworn testimony from public health experts or DEP.
A public meeting to gather additional information that may affect an embattled regulation to limit pollution discharged into the state’s rivers and streams yielded little new data, but prompted concerns by environmental advocates that the state agency tasked with protecting human health and the environment is prepared to side with industry.
About two dozen people — from environmental groups to industry representatives to concerned citizens — attended the listening session at West Virginia Department of Environmental Protection headquarters in Charleston Thursday, Jan. 17.
After a years-long public process to update the state’s water quality standards — rules federally mandated under the Clean Water Act — DEP was tasked by the Legislative Rulemaking Review Committee in November to gather more state-specific data that could affect the pollution limits set in the regulation.
At the meeting, the committee voted to remove DEP’s recommendations to update standards for 60 pollutants known to have human health effects. That decision came after hearing from the West Virginia Manufacturers Association that its members had concerns over the updated rule.
However, by the conclusion of the two-hour listening session Thursday, DEP officials said they had only received one piece of new information to consider: comments by a public health researcher that urged the agency to select the most protective pollution limits.
No new data or analysis was presented that could be used to fundamentally change the way the agency calculated the water quality standards suggested in the regulation. When asked, DEP officials would not commit to standing by their recommendations to the Legislature.
“I can’t really say today exactly what we’re going to do because we just have started to listen to you all one more time,” said Laura Cooper, assistant director of water and waste management for DEP and one of the architects of the regulation. “I don’t know what the decision will be.”
A Process ‘Stalled’?
Credit Brittany Patterson / WVPB
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WVPB
About two dozen people attended a public listening session about the water quality standards at DEP headquarters Thursday Jan. 17.
Environmental advocates and some citizens in attendance expressed bewilderment that the agency would not stand up for its own recommendations, which took more than a year to craft and did factor in a 2008 study that showed West Virginians eat less fish than the national average.
“On its face, it appears that the DEP, a state agency serving the people of West Virginia whose task is to protect public health and the environment is being complicit in a tactic to stall these updates,” said Angie Rosser, executive director of the West Virginia Rivers Coalition.
The final proposal, which was released last summer, garnered hundreds of pages of public comment. The agency proposed adopting 56, of the 94 human health criteria updates the U.S. Environmental Protection Agency suggested in 2015. Two-thirds of the updates made it so less of certain chemicals could be discharged into rivers and streams and one-third loosened pollution levels.
Human health criteria represent specific levels of chemicals or conditions in a water body that are not expected to cause adverse effects to human health, according to the EPA. States are encouraged to develop their own specific criteria and draw from things like how much fish residents consume, water consumption, body weight, and the level of risk to disease state regulators deem acceptable.
Rosser and others noted that DEP spent more than a year drafting the updated rule and the process included multiple public comment opportunities.
“Suddenly now, today, or November, we’re hearing from the Manufacturers Association that they’re just now starting their study of this, and that the DEP is saying, ‘well, manufacturers we’ll wait for your study. You show us what you got,’” Rosser continued. “When? A year from now, three years from now, 10 years from now? Like, how long is this process going to keep stalling while we’re living in the 1980s?”
Following a request by the West Virginia Manufacturers Association that DEP should consider more state-specific studies and data that might alter the levels by which exposure to pollution is safe, the Legislative Rulemaking Review Committee during a November Interim meeting removed the updated standards proposed by the agency and tasked DEP with gathering more data.
“From the beginning, from the time the Water Quality Standards were proposed, industry had asked that they be calculated in accordance with West Virginia-specific data,” Dave Yaussy, an attorney with the law firm Spilman, Thomas & Battle who represents the West Virginia Manufacturers Association, said at the public hearing.
Cooper, with DEP, pushed back against that assertion.
Credit Brittany Patterson / WVPB
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WVPB
Laura Cooper, assistant director Division of Water DEP.
“So EPA put out their recommendation criteria in August 2015. Just a few days later we had a water quality standards meeting at which we mentioned, first of all just FYI everybody, EPA recommended some new criteria a few days ago,” she said. “And in September 2017 we had a specific water quality standards public meeting that was all related to human health criteria where we went over the equations and all that and how they were calculated So, it’s been some time since then that we’ve had to look at them so far.”
At the meeting, Yaussy introduced environmental consultant Jennie Henthorn who had been been retained by the trade group to begin this work, described in highly technical terms.
Henthorn said she had “just started” to dig into the data within the last week and couldn’t yet say how long it might take.
“We want to review all of it, or at least all of it that’s relevant to our members to see if that would have an effect on what the criteria would end up being,” Yaussy said. “We’re not aware of any place in the state where drinking water is being affected as a result of any of these criteria, so we don’t see any danger to the public in allowing some time to do that study.”
Danger Unknown
Continuing to wait on that study’s completion did not sit well with many of the attendees.
“DEP should defend what they did in July and the whole process. It took so many years. It wasn’t just the one year it was input all through those years,” said Helen Gibbons with the League of Women Voters. “We shouldn’t just throw something out because one group doesn’t … or maybe more than one group .. doesn’t think West Virginia is up to snuff in putting these standards in our scheme of things.”
Rosser, with West Virginia Rivers Coalition, said if state adopts the non-updated regulations, there are three examples of water quality standards that allow more chemical pollutants into streams and rivers than current drinking water standards.
That’s important because in some parts of the state, especially along the Ohio River, rivers recharge aquifers that are drawn upon for drinking water.
“Generally we have that concern that if we don’t make these updates, we’re continuing to allow more chemicals in our drinking source water than [sic] we want in our consumable water,” she said.
Environmental groups and public health advocates also expressed concerns that DEP’s proposal to include 56 of EPA’s suggestested human health criteria was not as stringent as it could be.
In an emailed statement, West Virginia University Public Health Professor Michael McCawley said any exposure to cancer-causing carcinogenic pollutants — even at levels deemed safe by EPA — may be too high of a risk.
Concerns were also voiced about two additional changes that remain in the proposed water quality standard update. DEP changed the way it calculated permitted limits how much pollution could be discharged and it adopted language that would allow the “mixing zones” for multiple chemicals to overlap as long as it didn’t happen near public water supplies.
Both of those changes were mandated by the Legislature in a bill it passed in 2017, HB 2506, which was put forward by the West Virginia Manufacturers Association.
The Senate Energy, Industry and Mining Committee is expected to take up the bill that contains the water quality standards Tuesday.
A multi-state commission charged with protecting the Ohio River decided Thursday to postpone a decision to dramatically alter pollution controls.
The Ohio River Valley Water Sanitation Commission, or ORSANCO, has been considering a proposal that would reduce its oversight of water pollution control standards along the Ohio River. The proposal, called “option 2” would eliminate the body’s water pollution control standards for industrial and municipal wastewater discharges into the river.
The eight state body was created before the passage of the Clean Water Act, with a mission to collaboratively protect the river and set limits on industrial pollution through water quality standards. ORSANCO Director Richard Harrison said the new proposal is about balancing where to put the body’s limited resources.
“This review was really about determining what is the proper role for ORSANCO going forward,” he said. “Is it in pollution control standards? Or is it in other areas such as scientific research.”
The commission argues that water pollution control standards set by member states will protect water quality and the U.S. Environmental Protection Agency will provide adequate oversight.
“The pollution control standards of the commission actually represent a third layer of standards for the Ohio River,” Harrison said. “Each member state has criteria and it’s actually the member states that implement standards through their permitting program.”
The commission was expected to vote Thursday on the proposal, but the committee tasked with making recommendations to the commission said it needed more time. Harrison said thousands of people have weighed in on the proposal.
“Really the amount of comment is the reason the committee is taking some more time to deliberate and really make sure we continue our thorough review,” he added.
Conservation groups cheered the decision. Robin Blakeman, with the Ohio Valley Environmental Coalition, said the proposal, if passed as is, will diminish the river’s water quality. That could affect ecosystems and jeopardize the river, which is a source of drinking water for 5 million people.
“Essentially they backed away from making a decision at this meeting and they say they’re going to engage in further dialogue with those of us in the environmental communities,” she said. “So, we’re very glad for that.”
ORSANCO is next scheduled to meet in February in Covington, KY. Harrison said the committee could provide a recommendation at any time, and at this time there are no additional public hearings on the proposal scheduled.
