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Bill that allows more WV water pollution advances

SAM OWENS | Gazette-Mail photos
Evan Hansen (left) of Downstream Strategies, an environmental consulting service, answers technical questions from delegates during the House Judiciary Committee meeting on Wednesday at the West Virginia Capitol. Hansen argued against a bill that would weaken state water quality protections.
Dave Yaussy, a West Virginia Manufacturers Association lobbyist, said Wednesday he couldn’t give any estimates of jobs the rule change would create or jobs that have been lost because of the existing rule.

A bill that would allow more pollution to be discharged into West Virginia’s rivers and streams was approved Wednesday afternoon by the House of Delegates Judiciary Committee, giving industry officials their first victory in a renewed effort toward passage of a long-sought weakening of water quality protections.

Committee members voted 15-10 to advance to the House floor the change in the stream flow figures the state Department of Environmental Protection uses when it sets discharge limits for water pollution permits under the state’s program to implement the federal Clean Water Act.

Supporters say the change included in House Bill 2506 is acceptable under U.S. Environmental Protection Agency recommendations, but opponents question what impact the legislation would have on the environment, public health and the economy.

“This doesn’t increase jobs,” said Delegate Shawn Fluharty, D-Ohio. “It doesn’t increase revenue. The only thing it does increase is pollution.”

Committee members discussed the complex legislation for the first time Wednesday morning, when they asked questions of a DEP official, an industry lobbyist and an environmental consultant working with the West Virginia Rivers Coalition. When they returned for an afternoon meeting following the day’s floor session, committee members briefly debated the legislation before approving it on a largely party-line vote.

One Republican, Delegate Riley Moore of Jefferson County, joined all nine of the panel’s Democrats in voting against the bill, which is being pushed by the Manufacturers Association and has strong support from other business and industry groups.

A companion bill is pending in the Senate.

The bill is similar to part of a broader set of a rule changes that then-DEP Secretary Randy Huffman proposed last year, drawing strong opposition from environmental and citizen groups.

Huffman stuck with the proposal, but then pulled it from the legislative agenda in late November. Huffman and other DEP officials had become concerned when industry lobbyists said they would use that rules package as a vehicle for a different weakening of drinking water protections that Huffman opposed.

Over the years, the change in state water quality rules has been the subject of an off-and-on controversy, although it was rejected more than two decades ago after the Affiliated Construction Trades Foundation, a coalition of construction unions, opposed the measure with a campaign that dubbed it the “Cancer Creek” bill.

Essentially, the bill would instruct the DEP to change the stream flows that agency staffers use in pollution limit calculations from low-flow conditions to average flow. West Virginia uses a flow referred to as “7Q10,” which is the lowest seven-day consecutive flow that occurs at least once every 10 years. The bill would mandate the use of an average flow called “harmonic mean.”

The bill’s lead sponsor, Delegate Mark Zatezalo, R-Hancock, repeatedly said the legislation would not change any of the numeric water quality standards that limit the amounts of various pollutants allowed in state rivers and streams.

While Zatezalo is correct on that, changing the type of flow amounts the DEP uses to calculate how much of any particular discharge would violate the in-stream water quality standards would result in changes to the specific discharges allowed by the permits the DEP approves for chemical plants, coal operations and other industrial operations.

When DEP permit reviewers calculate discharge limits, they use the in-stream pollution limits and estimates of stream flow.

Because the bill would require the DEP to use larger stream flows, the result would be discharge permits that allow “significantly more carcinogens” and larger amounts of other water pollution, according to Evan Hansen, an environmental consultant with the Morgantown consulting firm Downstream Strategies, which is working with the West Virginia Rivers Coalition to rally opposition to the legislation.

“There is one impact of this bill, and that’s to allow dischargers to discharge greater levels of carcinogens and other toxics,” Hansen said.

The Manufacturers Association and the West Virginia Chamber of Commerce have, for years, supported various versions of a change to harmonic mean, and have complained that the state’s use of low-flow numbers in water pollution permits puts businesses at a competitive disadvantage. However, during an appearance before the Judiciary Committee on Wednesday morning, association lobbyist Dave Yaussy said he could not give lawmakers any estimates of the jobs the regulatory change would create or examples of manufacturing jobs that have been lost because of the existing rule.

When the DEP proposed a change to harmonic mean last year, one of the agency’s central reasons for the move was that the EPA said harmonic mean is the appropriate flow to use for determining the eventual permit limits for cancer-causing chemicals.

At the time, DEP officials said the reasoning behind using harmonic mean is that EPA numbers for safe levels of cancer-causing chemicals are based on the risk of long-term exposure to those chemicals by drinking water over many years. So, using an average flow makes more sense than a low-flow condition that might rarely happen, agency officials said.

Speaking to the committee Wednesday, Hansen said lawmakers should not be focused on whether the state can make this change, but whether it should.

“The question isn’t whether we’re allowed to do it,” Hansen said. “It’s whether it serves the public interest.”

Voting against the bill were Delegates Byrd, Canestraro, Fleischauer, Fluharty, Isner, Lovejoy, Miller, Pushkin and Robinson, all Democrats, and Delegate Moore, a Republican. Voting for it were Delegates Capito, Deem, Fast, G. Foster, N. Foster, Hanshaw, Hollen, Kessinger, Lane, O’Neal, Overington, Sobonya, Summers, Zatezalo and Shott, all Republicans. The original bill’s lone Democratic co-sponsor, Minority Leader Tim Miley of Harrison County, is not on the Judiciary Committee.

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

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