DEP backs water pollution bill

F. BRIAN FERGUSON | Gazette-Mail file photo
Department of Environmental Protection Deputy Secretary Scott Mandirola, seen here leading a 2014 meeting at the Charleston Civic Center, spoke before the state Senate Finance Committee Thursday about the agency’s support of a bill to change the stream-flow figures used to calculate permit discharge limits.

The state Department of Environmental Protection supports the House-passed legislation that would allow increased discharges of toxic chemicals into West Virginia rivers and streams, a top DEP officials told a Senate committee Thursday afternoon.

DEP Deputy Secretary Scott Mandirola told the Senate Finance Committee that the agency backs the bill’s mandate to change the stream-flow figures used to calculate permit discharge limits from the current method using a low-flow figure to using an average flow called the “harmonic mean.”

Sen. Corey Palumbo, D-Kanawha, noted that the legislation was getting a lot of attention and lawmakers wanted to know if DEP supported it.

“Scientifically, it makes perfect sense, yes,” Mandirola said.

Palumbo asked Mandirola, “That’s a yes?”

“Yes, it is,” Mandirola said.

House Bill 2506 is being pushed by the West Virginia Manufacturers Association. The change in DEP permit-writing calculations would not increase the state’s actual in-stream pollution limits, but would change the amount of pollution companies could discharge through permits the DEP issues under the Clean Water Act’s National Pollutant Discharge Elimination System, known as NPDES.

Mandirola said that using an average flow of streams in setting permit limits makes sense because the numeric in-stream limits that the U.S. Environmental Protection Agency recommends for various pollutants are based on the potential human health effects of long-term exposure to those chemicals.

Palumbo asked Mandirola if the change would result in an “improvement of water quality, a deterioration of water quality or no change at all.”

“It doesn’t change the water quality standards per se,” Mandirola responded. “It changes how we calculate the discharge limits for those pollutants.”

DEP Secretary Austin Caperton, appearing before the Finance Committee for a hearing on his agency’s budget, turned questions about the water pollution legislation over to Mandirola.

“I already messed that one up once this week in Morgantown,” joked Caperton.

On Monday evening, Caperton had told a public meeting in Morgantown that he didn’t know enough about the bill to know if he was concerned about it and that he didn’t know if the DEP had taken a position on the legislation.

Sen. John Unger, D-Berkeley, asked Mandirola who was going to benefit from the legislation.

“I assume NPDES dischargers,” Mandirola said.

Unger said, “Dischargers? Industries that are discharging into rivers and streams?”

“I would assume so,” Mandirola said.

Unger asked, “So this would allow industries and others to discharge larger quantities of pollution into drinking water?”

“Potentially,” Mandirola said. But, Mandirola added, the DEP’s mixing zone rules that aim to ensure pollution is diluted to within legal limits downstream from the actual discharge pipes at industrial facilities would only allow such discharge increases if the companies involved showed a “need” for those changes. Mandirola emphasized again, as industry officials have, that the legislation doesn’t actually change the in-stream water quality limits.

Unger commented, “So that’s amazing. You put more pollutants into water and it means the water quality stays the same at the end of the day. That’s interesting science.”

During the committee’s budget hearing, Sen. Doug Facemire, D-Braxton, ripped into DEP officials for not having done more to deal with potentially crippling costs to the state of cleaning up water pollution if more mine operators around the state go bankrupt and walk away from their reclamation liabilities.

Caperton told lawmakers that the DEP was looking for a program to deal with the issue.

“If we don’t get that done, all of a sudden someone could come in and say ‘Your state’s bankrupt,’ because the liabilities for water treatment would just swallow us,” Caperton said.

Under federal law, mine operators must post reclamation bonds to ensure mine sites that are abandoned are cleaned up. But those bonds don’t cover the full costs of reclamation, let alone extensive payments for long-term treatment of some mining-related water pollution.

The state’s “Special Reclamation Fund” — supported by an industry tax — is supposed to ensure full reclamation, but the fund has never really had enough money, especially to deal with long-term water treatment liabilities. Over the years, citizens have had to repeatedly sue the DEP and the federal Office of Surface Mining to force the agencies to collect more money and to treat water pollution from abandoned mines.

Each year, a DEP advisory council submits a report to lawmakers that outlines the status of the situation. Seldom do lawmakers spend much time on the issue.

During Thursday’s meeting, Facemire questioned why the DEP had allowed the situation to develop in the first place.

“This is something that didn’t just happen,” Facemire said. “I’m failing to understand why the DEP has not done its job to protect the people. Why did the DEP allow us to get into a position where an industry could bankrupt the state by its actions.”

“This problem has been around for a long time,” Facemire said. “We knew this problem was out there. We knew it last year. We knew it the year before. We knew it the year before that.”

When Facemire asked what could have been done about the issue, Caperton asked a group of top DEP managers who were in the audience if they had any answers for the committee. No one offered any.

“We can’t answer that question,” Caperton said. “There’s probably a legislative solution.”

Facemire asked when Caperton would have an answer about how to fix the issue.

“I don’t know,” Caperton said.

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

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