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Water pollution bill moves forward to Senate floor

F. BRIAN FERGUSON | Gazette-Mail
Scott Mandirola, director of the Division of Water and Waste Management at the state Department of Environmental Protection, explaining water quality standard issues to the Senate Judiciary Committee meeting Wednesday.
F. BRIAN FERGUSON | Gazette-Mail
Sen. Mike Romano, D-Harrison, asks questions about the water pollution bill under consideration by the Senate Judiciary Committee meeting Wednesday evening.

A controversial bill that could allow more toxic chemicals to be discharged into West Virginia’s rivers and streams cleared another hurdle Wednesday night, on its way to giving business and industry lobbyists a long-sought change in state water pollution rules.

Members of the Senate Judiciary Committee passed the legislation on a 10-5 vote after a move by Sen. Randy Smith, R-Tucker, ended the process of the committee allowing various sides to offer comments on the bill and essentially headed off some expected amendments by opponents of the measure.

Smith noted that the House of Delegates already held a public hearing on the bill and said that those who are against the current language will have an opportunity to try to make changes when it hits second reading — amendment stage — on the floor.

“This is a committee meeting, not a public hearing,” Smith, who is employed as a safety manager for Mettiki Coal, said after the meeting. “We have a lot of bills we have to address.”

Judiciary members in the Senate took up House Bill 2506 nearly three weeks after Senate Judiciary Chairman Charles Trump, R-Morgan, held an informal meeting of interested parties after the legislation easily passed the House on March 1.

The bill, being pushed by the West Virginia Manufacturers Association, 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.

Specifically, the bill would switch DEP 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 area allowed under DEP-approved permits.

Some industry groups have been periodically seeking this kind of change for more than 25 years, since the proposal was defeated in a major fight in which the Affiliated Construction Trades Foundation, a labor group opposed to the change, dubbed it the “Cancer Creek” bill.

Industry officials say — without offering any specific examples or data — that the change would benefit economic development efforts. Environmental groups say that clean water is good for the state’s long-term economy and that insufficient evidence has been presented to warrant a change in longstanding state policy to be protective of human health.

Tim Ball, general manager of the Morgantown Utility Board, told committee members that he’s opposed to the legislation and worries about its impact on his ability to protect the 25,000 customers that rely on him for safe drinking water.

“My concern is that the standards that we set provide a certain level of safety factor,” Ball said. “My concern is this bill relaxes, reduces, that safety factor. The odds are slipping away from our favor.”

Sen. Glenn Jeffries, D-Putnam, said he was concerned that the legislation was a step backward for environmental protection in West Virginia.

“A lot of us lived in this area back when you didn’t want to go into the Kanawha River,” Jeffries said. “I just want to make sure we don’t go back to that.”

Scott Mandirola, director of the DEP’s Division of Water and Waste Management, said that the change to using an average flow in setting permitted pollution discharges makes sense because recommended federal limits on toxic chemicals are aimed at protecting the public from long-term exposure from drinking water over the course of an entire lifetime.

“The science seems to be sound,” Mandirola said. “It makes sense to permit this way.”

But Sen. Mike Romano, D-Harrison, noted that information provided to the committee suggested that most surrounding states appear to use average flow in setting limits for carcinogens and a low-flow for non-carcinogens.

“I would like to pass this bill,” Romano said. “My problem is I don’t want to lower our standards below those of surrounding states.”

Mandirola said that the U.S. Environmental Protection Agency’s advice to states on the issue seems to have been evolving, up to a 2016 letter in which EPA urged West Virginia to adopt harmonic mean for both types of pollutants.

Mandirola didn’t make clear, though, that DEP declined to follow that EPA recommendation and submitted a rule change to lawmakers that would have adopted harmonic mean for carcinogens and a low-flow measure for non-carcinogens. Late last year, then-DEP Secretary Randy Huffman pulled that proposal, though, when industry lobbyists warned they would use it as a legislative vehicle to weaken other, related water quality rules.

Testifying to the Senate committee, House Judiciary Vice Chairman Roger Hanshaw, R-Clay, said that another part of the bill, allowing different dischargers 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, said Hanshaw a chemist and an attorney who represents companies in water pollution matters.

Dave Yaussy, an industry lawyer and lobbyist, said that the legislation could help existing companies that are right on the borderline of being able to meet their current pollution permit limits. With an increase limit from using harmonic mean, those companies wouldn’t increase their pollution, Yaussy said. They would simply be in compliance with a new and larger permit limit.

“We won’t discharge any higher,” Yaussy said. “We just set higher limits.”

That situation would also allow companies that receive higher permit limits to show they are unlikely to cause a water quality violations, a move that would relieve them of having to do as much discharge monitoring in the future, Yaussy said.

Trump eventually opened the meeting up to allow anyone in the audience to speak to the bill if they wanted. Several opponents of the measure, including Charleston City Councilwoman Karan Ireland, went to the podium.

Smith quickly called for a vote, in a move that put a stop to the public comments and effectively cut off the opportunity for amendments in committee.

Voting against the bill were Sens. Beach, Jeffries, Miller, Romano, and Woelfel.

One of the leading opponents of the bill, Sen. Ron Miller, D-Greenbrier, predicted that there would be efforts to amend the bill on the floor.

“It’s going to be a long floor session,” Miller said.

Earlier in the day, Miller had recognized World Water Day, a United Nations event meant to call attention to threats to drinking water around the world. Miller said in his part of the state, many residents see clean water as a vital part of a growing tourism economy.

“It’s so very important to the state of West Virginia,” Miller said.

Reach Ken Ward Jr.

at kward@wvgazettemail.com,

304-348-1702 or follow

@kenwardjr on Twitter.

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