‘Cancer creek’ water rule issue back in DEP’s court

A simmering question of whether a subsequent bill wiped out legislative language that could increase the amount of toxic chemicals discharged into West Virginia’s rivers and streams was tossed back to the state Department of Environmental Protection on Thursday, and officials said the issue may eventually be headed to court.

House of Delegates officials said that they would not be making a decision about whether passage of a coal industry bill that affected the same section of code effectively nullified passage of House Bill 2506, which would have adopted a new way to calculate water pollution permit limits set by the DEP Division of Water and Waste Management.

House Clerk Steve Harrison does not have legal authority to make a final determination about whether the last bill passed controls the situation or if some other effort to “harmonize” the bills should be made, House spokesman Jared Hunt said Thursday. Hunt added that neither the House Clerk, nor anyone else, publishes an “official” version of the code which would delete or harmonize such conflicting sections.

“Ultimately, when an agency or others are unclear on how to determine the impact of conflicting sections, it may be necessary for a court to decide,” Hunt said in an email response to questions about the issue.

Three weeks ago, DEP officials had said during a public meeting on water quality standards that the House Clerk has such authority and they were waiting to see how Harrison handled the situation.

“A decision will come from the Clerk of the House of Delegates,” DEP lawyer Jay Lazell said at the meeting June 13. “Whatever happens, happens, and if people want to challenge it, they can challenge it.”

Passage of the first piece of legislation, HB 2506, gave the West Virginia Manufacturers Association and other industry groups a long-sought victory with language to move the DEP to the use of an average stream flow called “harmonic mean” when setting pollution permit limits. For years, the DEP has used a more protective low-flow stream figure in calculating those limits. Some environmental and labor groups that opposed the change to “harmonic mean” during previous legislative sessions had dubbed the measure the “Cancer Creek” bill.

Under the bill, the state’s water quality standards — the legal limit for in-stream contamination — won’t change. But because the average flow is always higher than the low-flow measure, the change allows the agency to approve increases in the discharges allowed by specific industrial facilities.

The Rivers Coalition, the West Virginia Environmental Council and other citizen groups opposed the bill. The Justice administration supported it, with Commerce Secretary Woody Thrasher speaking in favor of it at a public hearing.

The bill received final approval from lawmakers March 28, and the governor signed it April 8.

The second bill, SB 687, originated in the Senate Committee on Energy, Industry and Mining on March 25, to replace an earlier bill — written by the West Virginia Coal Association — that would have stripped state mine safety inspectors of almost all authority to issue citations and levy fines.

Both of the coal bills, sponsored by Sen. Randy Smith, a Tucker County Republican who works for Mettiki Coal, combined various state mine safety boards and sought to help mining companies combat citizen lawsuits aimed at forcing cleanup of contaminated streams. Smith depicted SB 687 as legislation agreed to by various interest groups, but the Rivers Coalition and other environmental organizations said Smith left them out of his closed-door negotiations. The bill passed on April 8, the last day of the legislative session. The governor signed it April 26.

SB 687, though, inadvertently re-enacted the same section of state code that included the harmonic mean flow changes that were made by HB 2506, replacing the changes with the language that was in the law prior to this legislative session.

The state Supreme Court has said, as recently as 2001, that when faced with conflicting bills, the courts “generally follow the black-letter principal that effect should always been given to the latest ... expression of the legislative will.”

In late April, House officials notified the Justice administration of the problem and suggested that the governor include the harmonic mean bill on a special session call. Gov. Jim Justice’s press secretary, Grant Herring, responded at the time by saying Justice “signed both bills because they are good for West Virginia. If the Legislature made a mistake, the Legislature needs to fix it.”

During its public meeting on water quality standards last month, DEP gave the public a long description of the agency’s view of the use of harmonic mean flow in calculating permit limits. But agency officials insisted that it wasn’t really up to them to decide which of the two pieces of legislation should be implemented.

“There were two bills that were passed. They both amended the same section of code,” said Laura Cooper, assistant DEP director for water quality standards. “The Legislature is completely in charge of making changes to code. They passed both of those, and they both amended the same section and now there is some contention as to which of those is the new code.”

Cooper also noted during the meeting that a change in state water quality standards — such as the switch to harmonic mean included in HB 2506 — could not be implemented by the DEP unless and until it is reviewed and approved by the U.S. Environmental Protection Agency.

DEP spokesman Jake Glance said in an email that the agency is currently enforcing the law “as it existed prior to these bills being signed by Gov. Justice.” But Glance did not clarify whether DEP plans to submit the harmonic mean language to EPA in the hopes of getting it approved and implemented.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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