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Conservationists and concerned citizens urged West Virginia environmental regulators Monday to rescind a proposed provision for state water quality standards that they say would circumvent the public review process for evaluating future adjustments to water toxin levels deemed acceptable.

The provision would allow the West Virginia Department of Environmental Protection to evaluate water quality criteria on a case-by-case basis, a change that the West Virginia Rivers Coalition and other environmentalist groups view as a loophole for chemical and other industrial manufacturers.

“[It’s] a blatantly unfair provision for the public,” Jim Kotcon, chair of the conservation Committee for the West Virginia chapter of the Sierra Club, said during a public hearing that the Department of Environmental Protection held via Zoom teleconference Monday evening to collect input on its proposed water quality updates. “It creates some major environmental justice issues.”

The Department of Environmental Protection is also proposing updates to 35 water quality criteria to match the U.S. Environmental Protection Agency’s 2015 updates of nationally recommended criteria.

Human health ambient water-quality criteria represent specific levels of chemicals or conditions in a body of water that are not expected to cause adverse effects to human health, according to the EPA’s definition.

The provision would allow, as part of the water pollution permitting process, case-by-case evaluation of the total human exposure to water toxicants from ingestion of water and fish from an ambient waterbody.

Permit limits based on revisions to the criteria would be subject to a 45-day public comment period and EPA review.

But permit limits would not be subject to review by the West Virginia Legislative Rule-Making Review Committee, a panel of lawmakers from the Senate and House of Delegates that usually signs off on rule modifications.

The DEP is required by the federal Clean Water Act to review the state’s water quality standards every three years. The state requires all revisions to be approved by the Legislature before final EPA approval.

Environmentalists object to the proposed divergence from that process.

“It puts the public at a severe disadvantage,” West Virginia Rivers Coalition Executive Director Angie Rosser said of paragraph 8.2.c, the provision in the proposed rule that has drawn environmentalists’ ire. “It … eliminates the Legislature as another means of public transparency and participation.”

Echoing written comments the Rivers Coalition filed with the Department of Environmental Protection urging rejection of paragraph 8.2.c, speakers at Monday’s public hearing argued that the measure would unevenly benefit large corporations that can afford studies aimed at swaying state environmental regulators to decide that water and fish can handle more toxins while limiting the time for conservationist groups and any disadvantaged communities to respond.

“This is, in effect, a subsidy of the large corporations,” said Christine Wimer, president of the Jefferson County Foundation, a nonprofit that promotes environmental health in the Eastern Panhandle.

Wimer called the proposed provision an industry-driven loophole that would be responsible for “government-sanctioned environmental degradation.”

None of the 11 speakers who addressed the Department of Environmental Protection supported the provision.

The DEP’s public comment period for the proposed updates concluded at the end of Monday’s hearing.

The West Virginia Manufacturers Association supports the provision.

Rebecca McPhail, the group’s president, rejected characterizing paragraph 8.2.c as an industry-friendly loophole prior to Monday’s public hearing.

“[W]e would need to know what ‘loophole’ the Rivers Coalition is referring to,” McPhail said in an email. “Is it the process in paragraph 8.2.c that requires a scientific study and data search, public comment, state review and approval, and EPA review and approval?”

McPhail sees the provision as a sensible approach to revising human health criteria that she said have been “significantly flawed.”

There are still 35 Environmental Protection Agency-recommended criteria from the agency’s 2015 updates that the Department of Environmental Protection has yet to address and are not included in the proposed rule.

The Rivers Coalition has recommended that West Virginia environmental regulators adopt all remaining EPA-recommended updates that strengthen the state’s human health criteria.

The Department of Environmental Protection filed the proposed updates last month, less than two months after Gov. Jim Justice signed into law environmental rules that sailed through the Republican-controlled Legislature mostly along party lines. That law drew the ire of environmentalists for weakening water quality standards for certain carcinogens.

The DEP’s change of standards on pollutants in rivers and streams, as part of that rules package, adopted 24 of 94 updates proposed by the EPA. Thirteen of those updates weakened at least one category of existing standards, 11 of which the department said would result in weakened standards for permits.

DEP Deputy Secretary Scott Mandirola defended the updates in testimony before lawmakers, saying they would leave the cancer risk managed by the existing standards at 1 in 1 million.

Editor's note:

A previous version of this story misidentified Rebecca McPhail’s title with the West Virginia Manufacturers Association. She is the group’s president.

Reach Mike Tony at mtony@hdmediallc.com, 304-348-1236 or follow @Mike__Tony on Twitter.

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