Senate Energy Committee restores proposed DEP criteria in rule on water toxin discharge levels for human health

CHARLESTON — The Senate Energy, Industry and Mining Committee on Tuesday evening restored 60 water quality standards designed to protect human health back into a proposed Department of Environmental Protection rule; those parameters had been stripped out by a joint interim committee in November.

People supporting amending the parameters back into the rule had been concerned that the rule as introduced failed to take into account the latest science, which enhances many of those protections. Of greatest concern to many is exposure to carcinogens.

The rule was before the committee in the form of SB 167, dealing with waste discharge permits. The committee unanimously approved an amendment to the rule to restore DEP’s recommendations made in July, which conform to the most recent science but were removed by joint Rule Making Review Committee.

During its 2018 triennial review of the rule, DEP proposed in July to update the 60 water quality parameters to conform with Environmental Protection Agency recommendations issued in 2015 (after DEP completed that year’s review and too late to incorporate into the rule then).

DEP Deputy Secretary Scott Mandirola told the members that before the 2015 update, EPA used science from the mid-1980s and the 1990s for its recommendations, and current DEP rules are drawn from those recommendations.

After its July update, DEP put the rule out for public comment and in November presented it to the Rule Making Review Committee, which asked DEP to remove the updated standards and keep the old ones.

DEP complied, so the introduced rule before the committee contained the 1980s and ‘90s recommended levels for the 60 chemical pollutants, such as aluminum, arsenic, copper, barium and manganese.

Delegate Evan Hansen, D-Monongalia and a principal in Downstream Strategies, which deals with water quality issues, has followed the progress of the rule and was concerned about keeping with the old science.

“Some of the standards are getting more stringent and some are getting less stringent because we have new data,” he said. But it’s always best to go with current science.

Rule Making Review proposed the change at the request of the West Virginia Manufacturer’s Association. Association President Rebecca McPhail said after the first of the day’s two meetings — they recessed to let other committees use the room — that some of the standards are too fine to measure accurately. Others are based on national EPA recommendations regarding such things as fish consumption, human body weight and toxins in the water.

The association, she said, wants the Legislature to approve the rule with the old standards so that they have more time to research and propose standards specific to West Virginia, which the EPA permits. They’d like to put off changes until the May rule-making cycle begins, for a vote next year.

David Yaussy, association attorney, expanded on that during the evening meeting. “We don’t think that the changes proposed by the senator’s amendment are good science or good policy. We think we need to get the criteria right.”

All nature of local factors should be considered, he said, And for those criteria too low to measure, it’s hard to know if those chemicals are present in the discharge and creating a permit violation. The association would like to see practical quantitation limits.

Yaussy said other states measure discharge pollutants differently. Virginia, for instance, sets standards to protect against one cancer case per 100,000 population; West Virginia’s standard is 1 per million.

“We have asked repeatedly show us someplace where somebody is drinking this water in levels affected by the criteria change. Tens of thousands of impaired stream miles are not impaired by industrial discharge.

As a witness representing a state agency, Mandirola couldn’t lobby for or against the bill, but when asked, he said, “We agree with the science as we proposed it.” They only consented to remove them in November because the committee asked.

West Virginia University professor Michael McCawley, with the School of Public Health, has cautioned against retaining any old standards that are less stringent than EPA recommendations.

He likens, he said, exposing a person to carcinogens to playing in traffic. There’s some risk you may get hit by a car, and the risk increases with the amount of exposure. It’s the same with carcinogens in the water: the more that are there, the higher the risk of developing cancer.

Sens. Richard Lindsay, D-Kanawha, and Ihlenfeld, D-Ohio, led the questioning that drew out Mandirola’s explanation of the changes and his view on DEP’s original recommendation.

Lindsay proposed the successful amendment to restore the DEP’s parameters recommended in July.

Hansen commented after the vote, “I think they did the right thing. This is about using the best science and the most modern science and data to protect drinking water. I think most West Virginians agree that we should have clean water to drink.”

The proposed rule also includes provisions to adopt 2017 legislation regarding harmonic mean flow and overlapping mixing zones.

Harmonic mean flow projects a lifetime exposure to pollutants based on average annual flow — a standard supported by the EPA. Some oppose this form of measure for exposure to pollutants, saying it poses more danger because pollutant concentrations are higher when flows are low.

The legislation, and now the proposed rule, moves to harmonic mean flow from what’s called 7Q10, which is the lowest seven-day average flow that occurs, on average, once every 10 years, according to the EPA.

Mixing zones are defined areas of the river that initially receive and begin to dilute the pollutants. The overlap is designed to allow for concentration of industrial plants. Proponents of this say it could be used at brownfield sites that house facilities not using the whole site, where land is available for neighboring developments. Opponents overlapping zones say it simply allows for increased discharges.

SB 167 now goes to Senate Judiciary.

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