Water pollution changes lost when coal bill passed

Lawmakers approved controversial language that could increase the amount of toxic chemicals discharged into West Virginia’s river and streams, but they later removed the language from state law with the passage of a bill aimed at lessening a separate water quality restriction on the coal industry, legislative and administration officials said Monday.

The situation has legislators hoping that Gov. Jim Justice will include the issue on his call for a special session, which is to start Thursday, but has opponents of the water quality changes saying the incident shows there was too much of a rush to get the coal measure, Senate Bill 687, approved late in the regular session.

“It shows the problems of pushing a bill that late in the session without input from all sides,” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “Clearly, with [SB] 687, it came later in the session and was rushed through the process so quick that it wasn’t given the scrutiny it deserved.”

The first piece of legislation, House Bill 2506, gave the West Virginia Manufacturers Association and other industry groups a long-sought victory with language to move the state Department of Environmental Protection to the use of an average stream flow called “harmonic mean” when setting water pollution permit limits. For years, the DEP has used a more protective low-flow stream figure in calculating those limits.

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 on March 28, and the governor signed it on April 8.

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 Wednesday.

SB 687, though, 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.

Generally, bills are not only reviewed by legislative officials before they are sent to the governor but also are examined by the governor’s staff and attorneys before they are signed, to avoid these and other problems.

Jared Hunt, a spokesman for the House Republican leadership, said the House Clerk’s Office alerted lawmakers to the problem at the end of last week.

“With the Legislature being called back into session anyway, the hope is that the special session can be amended to allow lawmakers to correct that while they’re in town and before the code changes take effect,” Hunt said.

When asked what the governor planned to do, Justice press secretary Grant Herring said in an email message that the governor “signed both bills because they are good for West Virginia. If the Legislature made a mistake, the Legislature needs to fix it.”

Hunt responded, “Unfortunately, outside of a regular session, the Legislature can’t just ‘fix this’ without the governor’s cooperation to add the item on a special session call. Hopefully, since the Governor believes both bills are good for West Virginia, he will be willing to cooperate with us on this matter.”

Rosser encouraged the governor not to put the matter on the call for the special session.

“This special session isn’t a time to debate water quality standards,” Rosser said. “It’s to fix the state budget.”

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

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