Legislation that could allow increased discharge of toxic chemicals into West Virginia’s rivers and streams won final approval from the state Senate on Tuesday, giving business and industry lobbyists a major victory on a long-sought change in the way water pollution permit limits are calculated.
The move ends a more than quarter-century of periodic efforts by the West Virginia Manufacturers Association and other industry groups to move the Department of Environmental Protection to the use of an average stream flow called “harmonic mean” when setting pollution discharge permit limits. DEP officials have used a more protective low-flow stream figure in calculating those permit 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.
Sen. Corey Palumbo, D-Kanawha, noted that the legislation makes West Virginia’s permit calculations less stringent than surrounding states. Most surrounding states employ a split method that uses harmonic mean for cancer-causing chemicals that present long-term exposure dangers and a low-flow figure for noncarcinogens that present problems in shorter time frames, Palumbo said.
“This bill, as it currently stands, will make us less stringent than most of our surrounding states,” Palumbo said. “I don’t think our path to economic development is saying we allow more pollutants into our streams than other states.”
While lawmakers heard testimony from DEP officials, industry lobbyists and a consultant working on the issue for the West Virginia Rivers Coalition, the legislative review of the bill brought out no clear answers about the extent to which pollution discharge could be increased or about long-term public health implications of the bill — or about exactly what new businesses and jobs such a change in environmental rules would bring to West Virginia.
Sen. Mike Romano, D-Harrison, noted that lawmakers were told during the House of Delegates discussion of the bill that the change would bring West Virginia in line with surrounding states, something that turned out to actually not be completely correct when senators began digging into the matter.
“Passage of this bill will give us the most lenient flow standards in the region,” Romano said. “I guess we’re finally first in something.”
Tuesday’s Senate approval vote came just hours after a late-night session in which senators turned down efforts by Romano and Sen. Ron Miller, D-Greenbrier, to narrow the bill’s effects.
Miller had tried unsuccessfully to have the change to harmonic mean apply only to cancer-causing chemicals. Romano was unable to win approval of an amendment that would apply another change in the bill — allowing overlapping pollution dilution mixing zones by multiple discharging facilities — only to sites where the language would help with future development of former industrial sites. Miller’s amendment was rejected on an 18-11 vote with five senators absent. Romano’s amendment was defeated on a voice vote.
Senate Judiciary Chairman Charles Trump, R-Morgan, repeatedly pointed to an August 2016 letter in which the U.S. Environmental Protection Agency urged the state to adopt harmonic mean for both cancer-causing chemicals and noncarcinogens. Trump said he was especially persuaded by comments from DEP Deputy Director Scott Mandirola, who told lawmakers repeatedly that he thinks the science behind the EPA recommendation is sound.
“He would be screaming as loud as he could scream within the halls of this building, if he thought this was going to cause any degradation to the waters of this state or damage to drinking water,” Trump said during Monday night’s debate on proposed amendments to the bill.
On Tuesday, during debate on passing the bill, Trump added, “This will not cause harm or degradation of the waters of this state. I am certain of it from the science I learned.”
Never fully explained during legislative discussions on the bill, though, was why the DEP under the previous administration rejected the EPA’s recommendation to use harmonic mean for both types of pollutants, keeping a low-flow measurement for noncarcinogens, as surrounding states also do. During this legislative session, under a different governor and a different DEP secretary, the agency has supported using harmonic mean for both types of pollutants. In addition, Commerce Secretary Woody Thrasher appeared at a House Judiciary Committee public hearing and spoke in favor of the bill.
Various industry groups have waged an on-and-off effort to change the DEP to using harmonic mean since the early 1990s, when a proposal to do so was defeated after one of its chief opponents, the Affiliated Construction Trades Foundation, ran a public relations campaign that dubbed the measure the “Cancer Creek Bill.”
Trump noted during Tuesday’s floor debate that after passage of harmonic mean, West Virginia will still continue to apply its drinking water standards, known as Category A, to all segments of all rivers and streams statewide, even when there is no public drinking water intake present. Industry officials have been trying for years to reverse that policy, but Trump said, if they put forth that change again, he would oppose it.
“West Virginia provides as great, or greater, protection to its waters, in terms of drinking water criteria, than any of our surrounding states,” Trump said. “In West Virginia, we apply the drinking water criteria to every single waterway in this state, every inch of it, every mile of it. Our entire water system in West Virginia is covered by Category A criteria. There’s been talk that maybe this is too stringent. I’ll say here editorially that I don’t think it is. I like that our state says every stretch of every river and stream is going to meet drinking water criteria.”
Voting against the final bill were Sens. Beach, Facemire, Jeffries, Mann, Miller, Ojeda, Palumbo, Perzioso, Romano, Stollings, Sypolt, Unger and Woelfel. Voting in favor of the bill were Sens. Azinger, Blair, Boley, Boso, Carmichael, Clements, Cline, Ferns, Gaunch, Hall, Karnes, Maroney, Maynard, Plymale, Rucker, Smith, Swope, Takubo, Trump and Weld. Sen. Mullins was absent.
Reach Ken Ward Jr. at firstname.lastname@example.org, 304-348-1702 or follow @kenwardjr on Twitter.