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Water pollution bill makes broad changes sought by industry

SAM OWENS | Gazette-Mail
Rebecca McPhail, president of the West Virginia Manufacturers Association, listens to the House Judiciary Committee discuss the water quality bill Wednesday at the state Capitol. Sitting next to her is Dave Yaussy, an association lawyer and lobbyist.

A water pollution bill moving quickly through the Legislature would allow more toxic discharges to West Virginia’s rivers and streams and — with the support of Gov. Jim Justice’s administration — implement broader, industry-backed changes to state water quality rules that the state Department of Environmental Protection rejected just last year.

The legislation, pushed by the West Virginia Manufacturers Association, would apply a new type of stream flow measurement to set permitted discharge limits not just for cancer-causing chemicals, but also for pollutants that are linked to non-cancer human health effects. DEP had previously refused to extend the change to so-called “harmonic mean” flow in its permit process to non-carcinogens, according to agency records.

Lawmakers are also pushing to rewrite the way DEP officials would apply “mixing zones” to multiple pollution sources, in another change that the agency had only last year refused to make during its regular, triennial review of water quality standards. Critics say the impact of that particular change is not yet fully understood by lawmakers or the public.

Proponents of the bill, including lawmakers who generally have little use for federal regulators, say the change to harmonic mean has the support of the U.S. Environmental Protection Agency. But leaders of state environmental groups say the bottom line is the bill would allow potentially large increases in legal pollution discharges into rivers and streams across the state.

“There’s no question this bill is a favor to industrial polluters,” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “It simply comes down to a policy decision: Does the Legislature want to allow more toxic and cancer-causing chemicals in our water?”

Controversy over House Bill 2506 is likely to continue this week, with a public hearing on the measure scheduled for the House Chamber at 8:30 a.m. Monday morning, the same day the West Virginia Environmental Council had previously set aside for its annual “E-Day” at the Capitol.

Last week, the legislation advanced through the House Judiciary Committee on a 15-10 vote that was mostly along party lines. All but one of the committee’s Republicans supported the measure and all of its Democrats opposed it. Discussion in the committee, though, brought out no detailed analysis by the DEP about how the measure would affect the amount of pollution allowed into the state’s waterways and no evidence from the bill’s proponents to support the idea that the legislation would create jobs.

The heart of 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 currently 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.”

Over the years, this sort of change in state water quality rules has been the subject of an off-and-on controversy since a major fight over it two decades ago, when it was dubbed the “Cancer Creek” bill in a campaign waged by the Affiliated Construction Trades Foundation. Periodically since then, industry groups have tried to resurrect the proposal.

“We have a long history of encouraging the Legislature, as well as the DEP, to appropriately implement water quality standards, which includes EPA-sanctioned use of harmonic mean flow,” the manufacturers association president, Rebecca McPhail, said at the start of this year’s legislative session.

The reasoning behind the use of harmonic mean isn’t that complicated. 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 low-flow conditions that might rarely happen, supporters of the approach say.

But for years, and after an extensive back-and-forth policy debate in the 1990s, West Virginia has continued to use a more protective approach. If the state switches to harmonic mean, using larger flow amounts for streams will result in larger permitted discharges of pollution. While the legislation doesn’t technically change numeric water quality standards for in-stream pollution limits, assuming streams have more water flowing in them results in more pollution being allowed, while still meeting those in-stream standards.

The House bill is similar in some ways to a proposal that then-DEP Secretary Randy Huffman made last year as part of a review of water quality standards that federal law requires the state to conduct every three years.

Huffman drew harsh criticism from citizen groups when his agency’s proposal revived the idea of implementing harmonic mean in West Virginia. Huffman initially stuck with the proposal, but later withdrew it from the DEP’s annual legislative rules package for this year. He and other DEP officials had become concerned industry would use the proposal as a vehicle to get other water rule changes that Huffman opposed through the Legislature.

The proposal that Huffman made, though, would have applied harmonic mean only to cancer-causing discharges. For non-carcinogens, the DEP would have used a different lower-flow stream figure called “30Q5,” which is the minimum mean, 30-day consecutive drought flow with a five-year return frequency.

During a comment period last summer, the EPA and the manufacturers association both urged the DEP to instead adopt harmonic mean flow for all types of discharges.

DEP officials refused.

In a formal “response to comments” document, the DEP told the manufacturers that, “We do not believe harmonic mean to be an appropriate flow statistic for non-carcinogens.” The DEP told the EPA that water quality limits for some substances “specifically those developed for taste and odor, become problematic at lower flow conditions.”

Oddly, the initial House legislation this session, introduced Feb. 16, proposed that West Virginia adopt the flow calculations that were recommended in a 1991 EPA document. That document generally backed up what Huffman’s DEP had done last year, the use of harmonic mean for cancer-causing substances and a lower-flow rate for non-carcinogens. The EPA said use of the lower flow method was preferred because many non-cancer health effects involve short-term exposures, not long-term ones that can cause cancer.

When the Judiciary Committee gathered for a meeting on the bill last week, though, a different version of the bill emerged. This “committee substitute” bill called for using harmonic mean for all pollutants, as the manufacturers and EPA had proposed, but the DEP had previously rejected.

A memo for lawmakers from the committee’s lawyer said that the section about harmonic mean was “agreed-to language between industry and the DEP.”

During the Wednesday meeting, DEP Deputy Secretary Scott Mandirola told the committee about the EPA’s comment during last year’s rulemaking, in which federal officials supported the idea of using harmonic mean for all types of pollutants.

“Harmonic mean should be used to implement human health criteria because, by and large, human health criteria are designed to protect an individual over a lifetime of exposure,” the EPA letter said, noting a May 2000 Federal Register notice on the issue.

In that comment letter, though, the EPA also said that West Virginia officials have “the prerogative to retain flows that will result in a more stringent application of the state’s human health criteria.” That’s what the DEP had decided to do last year, under Huffman and his boss, then-Gov. Earl Ray Tomblin.

DEP officials under the Justice administration and new DEP Secretary Austin Caperton have not offered a more detailed explanation for their reversal on the issue of how broadly to apply harmonic mean. Jake Glance, the DEP’s acting public information officer, did not respond to an interview request or to questions emailed to the agency.

The Judiciary Committee’s substitute bill does incorporate some changes that environmental groups were pleased about. For example, language was removed that would allowed mixing zones — the area where water quality standards don’t apply, to allow room for pollution to be diluted — to be moved closer to drinking water intakes with the permission of water utilities.

But citizen groups are still concerned about language in the committee version that the DEP and the industry agreed to that would allow the mixing zones from different pollution sources to overlap. In a flier about the legislation, the West Virginia Rivers Coalition warned that this language “allows more toxic discharges to locate closer together,” contrary to current rules that “are carefully designed to prevent multiple industrial sites from discharging in close vicinity.”

Last year, the DEP had rejected the manufacturers association’s request that it allow overlapping mixing zones. That provision is now part of the “agreed-to language between industry and the DEP.”

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

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