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House passes bill that allows increased water pollution

A bill that allows increased discharges of toxic pollution into West Virginia’s rivers and streams now is headed for the state Senate, after it was passed by the House of Delegates Wednesday following a somewhat confusing and emotional debate.

The House voted 63-37 to approve the legislation. House Bill 2506 would change the type of stream flow measurements the state Department of Environmental Protection uses when it sets the amount of pollution that chemical plants, factories and other industrial facilities can routinely discharge into the state’s waterways.

Under the bill, being pushed by the West Virginia Manufacturers Association, DEP would switch from using a low-flow figure for streams to an average-flow figure, called “harmonic mean.” The change would not increase the state’s actual in-stream pollution limits, but would increase the discharges that chemical plants and other industrial sites are allowed under DEP-approved permits.

“It will allow for more discharges into the water,” said Delegate Mike Pushkin, a Kanawha County Democrat who has led opposition to the bill. “That is why the industry lobbyists are asking for it.”

The manufacturers association and other supporters of the bill have touted the measure as a jobs bill, but the lead sponsor conceded during Wednesday’s floor debate that the legislation’s effect on West Virginia’s economic development efforts may have been overstated during discussions over the last two weeks at the Statehouse.

“I won’t stand here and tell you it’s going to bring all kinds of jobs,” said Delegate Mark Zatezalo, R-Hancock. “But there is going to be competition for jobs.

“This is just a small thing, but it’s an important thing,” said Zatezalo, a hydrogeologist who works for a Pittsburgh engineering firm. “If I believed it was going to harm the water quality of the state of West Virginia, I would be against it. I think it’s a good bill and I think it’s the way for us to go.”

The vote in favor of the bill came down mostly along party lines, with 57 of the votes for passage coming from Republicans. But one of the five Democrats who voted in favor was House Minority Leader Tim Miley of Harrison County, who also was a co-sponsor of the bill. Six Republicans crossed over to vote against the bill.

When explaining the bill on the floor, House Judiciary Vice Chairman Roger Hanshaw, R-Clay, emphasized several times in his argument that the legislation doesn’t change the state’s water quality standards, a set of numeric limits on the concentrations of various pollutants allowed in streams.

“This bill makes no change, none, to those standards,” said Hanshaw, a chemist and lawyer who represents various industrial clients for the Charleston firm Bowles Rice. “So, the overall water quality of the body of water doesn’t change with this bill.”

It’s correct that the bill doesn’t specifically change the state’s numeric water quality limits for in-stream pollution. But by changing the flow measurements used for setting the pollution any particular facility can discharge, the legislation would increase the amount of pollution those facilities can discharge, critics of the bill noted. It’s also correct that the legal in-stream concentrations of pollutants wouldn’t increase, but the actual discharges could increase. And as long as the in-stream concentrations in the water quality standards aren’t exceeded, the additional pollution up to those limits would be perfectly legal, critics of the bill said.

Delegate Charlotte Lane, R-Kanawha, said she supported the bill and urged lawmakers not to get too caught up in all of those details.

“The water standards are not changed,” Lane said. “Don’t get lost in all of these other arguments.”

Delegate Shawn Fluharty, D-Ohio and an opponent of the bill, pressed to try to get Hanshaw to admit that the state’s current use of low-flow stream measurements was more stringent in setting pollution limits.

“I don’t know about stringent, but it is an approach that results in a lower number,” Hanshaw said of the existing, low-flow rules.

Lawmakers have not been provided with any hard data or specific examples of new jobs that would be created by the legislation. Neither DEP nor lawmakers have offered any detailed analysis of exactly how the bill would increase pollution allowed in the state’s rivers and streams, or how such increase might affect public health. The language in the bill applies to the setting of permit limits intended to protect human health, but not to those that are designed to protect aquatic life.

The U.S. Environmental Protection Agency has indicated that it would approve a change to harmonic mean, something that the bill’s supporters — lawmakers and industry officials who usually aren’t big fans of the federal EPA — have repeatedly pointed out during debate on the measure.

Hanshaw did explain on Wednesday that he believes another section of the bill, allowing different discharges to have overlapping pollution dilution “mixing zones” — where in-stream water pollution limits don’t apply — would help in the redevelopment of closed industrial sites around the state. Where those sites still contain existing businesses with pollution discharge permits, allowing a new facility’s mixing zone to overlap would encourage such a facility to locate at the site, Hanshaw said.

Pushkin, though, said that the strong push for the bill by the manufacturers and other business groups is wrongly focused on industries of the past, rather than helping West Virginia to diversify its economy with clean businesses such as tourism.

“I for one think it’s time that we stop believing this tired old lie that the only thing we’re good enough for in West Virginia, the only kind of economic development we can have in West Virginia, will be at the expense of our citizens’ health, at the expense of our citizens’ safety, at the expense of something that’s as essential as the water flowing from their tap,” Pushkin said. “I refuse to believe that. I believe we’re better than that.”

Another opponent of the bill, Delegate Barbara Fleischauer, D-Monongalia, strongly disputed suggestions from some supporters that because the bill regulates routine pollution discharges and not one-time leaks like the one in January 2014 at Freedom Industries, the Kanawha Valley water crisis has nothing to do with the bill. Fleischauer said the water crisis should have shown lawmakers why tough protections for drinking water sources are important.

“It has everything to do with that,” Fleischauer said. “Because we know how precious our drinking water is. We know it. It’s been proven. I do not want us to be guinea pigs on lowering the water measurement so we have the potential for more contamination.”

The bill now moves to the state Senate.

While Gov. Jim Justice’s Commerce secretary, Woody Thrasher, spoke in support of the bill, and lawmakers were told it contained “agreed-to language” between DEP and the industry, DEP Secretary Austin Caperton told a public meeting in Morgantown on Monday night that he didn’t know much about the legislation and didn’t think his agency had taken a position. DEP has not responded to requests seeking a clarification of the agency’s position.

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

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