The West Virginia Legislature has passed a legislative rule that cedes its own power to review site-specific revisions to human health criteria and weakens water quality standards for probable carcinogens in line with federal recommendations.
The state Department of Environmental Protection-proposed rule would quicken the public review process for evaluating future adjustments to water toxin levels deemed acceptable.
The House of Delegates approved the measure as part of an environmental rules package Friday, completing legislation already passed by the Senate.
The House approved Senate Bill 279 in a 72-22 vote.
The bill is to be effective from passage and now heads to Gov. Jim Justice’s desk.
No House Democrats voted for the bill. Delegate Josh Booth, R-Wayne, was the lone Republican to vote against it.
The vote came a day after the House rejected amendments by two Democrats to the proposed rule that would have kept the state Legislative Rule-Making Review Committee in the review process for site-specific revisions to human health criteria and struck down the proposal’s weakening of human health water quality criteria for DDT.
The respective authors of those amendments, Delegates Evan Hansen of Monongalia County and Mike Pushkin of Kanawha County, renewed their opposition to the bill in House floor speeches prior to Friday’s vote.
“Nobody asked us to come here to put more carcinogens in their water,” Pushkin said.
Delegate John Doyle, D-Jefferson, rebutted an argument made by Majority Whip Paul Espinosa, R-Jefferson, that the proposed rule would avoid adding to water treatment costs for rural water systems and their ratepayers.
“It seems logical to me that the better job we do at the state level of keeping the water clean, the less it will cost our local water systems to keep our drinking water clean,” Doyle said.
DDT is a probable human carcinogen and insecticide banned in the U.S. in 1972 whose chemicals persist for a long time in the environment and animal tissues.
The proposed rule would raise the maximum allowable DDT concentration from 0.024 to 0.03 nanograms per liter.
But the Department of Environmental Protection has defended the rule change, which agency Deputy Secretary Scott Mandirola has called a compromise between industry and environmentalists on a work group formed to consider human health criteria updates.
Mandirola has told state lawmaker committees that the proposed rule change would preserve an estimated risk level of one additional cancer case per 1 million from the probably carcinogenic human health criteria.
The U.S. Environmental Protection Agency defines human health ambient water quality criteria as specific levels of chemicals or conditions in a waterbody not expected to adversely impact human health.
The proposed rule would remove lawmaker approval as a requirement for revisions of human health criteria based on the EPA’s 2015 national recommended human health criteria, a move that environmentalists and other concerned citizens have decried as a loophole for industry.
Permit limits based on revisions to human health criteria made under the new rule would remain subject to a 45-day public comment period and EPA review under the proposed rule.
The proposed rule would strengthen water quality standards for most of the water quality criteria it includes updates for.
“The majority of these get more stringent,” Legislative Rule-Making Review Committee co-Chairman Geoff Foster, R-Putnam, said in defense of the proposed rule. “ … If you vote against the rule, you’re very specifically voting to go back to how we’re currently under, which is a less stringent standard.”
The rule weakens standards for DDT, benzo[k]fluoranthene (a suspected human carcinogen found in coal tar and coal and oil combustion emissions), chrysene (a suspected human carcinogen and kind of hydrocarbon found in coal tar), gamma-Hexachlorocyclohexane (an insecticide whose technical-grade production was banned in 1976) and methyl bromide (a highly toxic fumigant and pesticide).
The West Virginia Rivers Coalition and other water quality advocates have objected to weakening any water quality standards, arguing that there is no need to weaken water quality standards given current industry compliance and high state cancer rates. The Rivers Coalition has also argued that the rule change would reduce public transparency and participation by eliminating legislative review of site-specific permits.
The West Virginia Manufacturers Association has said the current human health criteria are flawed, requiring site-specific corrections.
Mandirola has called the rule a compromise between industry and environmentalists on a work group formed to consider human health criteria updates.
The Senate approved the rules bundle containing the measure in a 26-8 vote on Jan. 31.
If a company thinks the data used to develop bioaccumulation factors in EPA criteria doesn’t apply to a specific waterway, they can present a study to the DEP making a case for a revised permit limit.
The proposed rule specifies that bioaccumulation factors may be evaluated on a case-by-case basis as part of the water pollution control permitting process or by petition to the DEP.
Bioaccumulation is the increase of pollutant concentrations in aquatic organisms and was a factor incorporated by the EPA into its 2015 updates of nationally recommended criteria.
The EPA provides recommendations for human health criteria for states to consider when adopting criteria into their water quality standards.
An updated fish consumption rate, body weight and drinking water intake are other factors the EPA considered in its 2015 updates.
The EPA allows states to modify its criteria to reflect site-specific conditions or adopt different criteria based on other scientifically defensible methods, subject to agency review.
Mandirola has said the proposed rule change was designed to cut down on the length of time it takes for changes to site-specific permits.
“We are not giving up complete control of water quality,” said Delegate Clay Riley, R-Harrison, noting in part that the Legislature is not giving up oversight of statewide water quality criteria.
The DEP noted in its response to comments made by the Rivers Coalition on the proposed rule last year that case-by-case evaluations made by applicants pursuant to the rule change could apply statewide, not just to specific sites.
But the rule was amended to note that the rule change eliminating legislator review of human health criteria permit limits applies only to site-specific permits.
Delegate Ed Evans, D-McDowell, said that deficient water infrastructure in his district consisting of straight pipes and mine-polluted aquifers makes his constituents especially vulnerable to any weakened water quality standards.
“The water down our way is bad, to be kind,” Evans said. “Don’t add anything else to it.”