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WV Senate leaders begin looking at water pollution bill

SAM OWENS | Gazette-Mail file photo
A lone staffer works in the state Senate Chamber at the Capitol Complex in Charleston. The Senate Judiciary Committee took up a bill concerning water pollution on Friday. The bill passed the House of Delegates earlier this week and was referred to the Senate committee on Thursday.

A water pollution bill that’s turning into the subject of a major battle this session does not completely mirror the permit limit calculation methods used in most of West Virginia’s surrounding states, Judiciary Committee leaders were told Friday as the Senate begins to examine the legislation.

Representatives of the West Virginia Rivers Coalition pointed out that most neighboring states do not use the same stream-flow figures in calculating allowed discharges for cancer-causing chemicals as for noncarcinogens, something the House-passed bill being promoted by the West Virginia Manufacturers Association proposes to mandate for the state Department of Environmental Protection.

Information compiled by the coalition showed that most surrounding states use the “harmonic mean,” or average, flow only for calculating permit limits for cancer-causing pollutants. Most use some form of low-flow figure in calculating permitted discharges of noncarcinogens, according to the information, compiled by Morgantown consultant Evan Hansen for the Rivers Coalition.

“None of them do the straight harmonic mean,” said Angie Rosser, executive director of the coalition.

Rosser and Hansen provided the group’s new compilation of stream flows and permit calculations during a meeting of environmental groups, industry representatives and DEP officials convened by Senate Judiciary Chairman Charles Trump, R-Morgan.

Trump said he called the “stakeholders meeting” to try to educate himself and committee staff about House Bill 2506, which was referred to the Senate Judiciary on Thursday, a day after it passed the House. Trump and Judiciary Vice Chairman Ryan Weld, R-Brooke, attended the meeting, which involved about 20 representatives from groups that ranged from the West Virginia Coal Association to West Virginia Free.

After the meeting, Trump said he did not yet have a timeline for when he will put the legislation on his committee’s agenda.

Under the bill, the DEP would switch from its longstanding practice of 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 could increase the discharges that chemical plants and other industrial sites are allowed under DEP-approved permits.

Supporters of the bill have portrayed it as a way to encourage business growth, but have not been able to point to any estimates of the jobs that would be created. Also, no detailed analysis of the potential increase in water pollution, or any resulting health impact, has been provided to lawmakers.

During Friday’s meeting, Rebecca McPhail, president of the West Virginia Manufacturers Association, said another part of the bill — which would allow pollution-dilution mixing zones from multiple discharges to overlap — could help bring new businesses to former 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, McPhail said.

Kathy Beckett, a lobbyist for the West Virginia Chamber of Commerce, recalled that some of the same organizations had the same fight over the proposed change to harmonic mean more than 20 years ago, and that continuing to fight the change isn’t helping to improve the state. Beckett said the DEP’s longstanding policy of applying drinking water quality standards to all streams statewide, whether they are home to a public drinking water intake or not, makes things hard enough for the state to compete for new industry.

“There are no mysteries here,” Beckett said. “Stop the debate, folks.”

But the Rivers Coalition noted that the legislation this year goes further than the regulatory proposal that then-DEP Secretary Randy Huffman made when he revived the harmonic mean debate last year. Huffman had proposed to adopt harmonic mean flow only for cancer-causing pollutants. Huffman proposed to continue using a lower-flow figure for noncarcinogens.

Generally, the idea behind using an average flow figure for cancer-causing pollutants is that U.S. Environmental Protection Agency water quality limits for those contaminants are based on long-term exposure from drinking water. Lower-flow figures have been advocated for noncarcinogens because often those contaminants pose shorter-term effects and also affect taste and odor.

During the comment period of Huffman’s proposal, the EPA urged the state to adopt harmonic mean for both. The Manufacturers Association also urged the DEP to do so.

The DEP refused, though, saying it didn’t believe harmonic mean is “an appropriate flow statistic for non-carcinogens.” Later, Huffman dropped the entire rule change from the DEP’s regulatory package after he become concerned that industry officials were going to use the rule as a legislative vehicle to go after his agency’s statewide application of drinking water standards.

During Friday’s meeting, DEP Deputy Secretary Scott Mandirola gave Trump a copy of the letter the EPA sent to the state during last year’s comment period to urge adoption of harmonic mean for all pollution limits intended to protect human health. But it wasn’t clear in the meeting if Senate committee members also were being made aware that, during last year’s rulemaking, the DEP had rejected that EPA suggestion.

This year, though, DEP officials agreed in the House to the language that would apply harmonic mean to carcinogens and noncarcinogens. The agency has not explained why it switched its position on that matter.

Industry officials said the August 2016 letter from the EPA should be the last word on the issue. But Hansen told Trump that a review of the EPA’s somewhat evolving position, from a 1991 guidance document, a 2000 Federal Register notice and a 2014 handbook, showed that federal officials actually were advocating a more nuanced approach that would use harmonic mean for noncarcinogens only in certain circumstances.

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

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