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Contentious DEP water pollution discharge rule clears House Energy, heads to Judiciary

CHARLESTON — The House Energy Committee went 30 minutes past its allotted meeting time on Tuesday debating a Department of Environmental Protection rules bill that contains a contentious a water quality rule that has been the subject of a months-long tug of war between environmental and business interests.

Delegate Evan Hansen, D-Monongalia and a water quality scientist and consultant in his day job, spent much of the time grilling witnesses, and posed an amendment that was shot down in the closing minutes. The committee then approved the bill essentially as it came from the Senate.

Agency rules are how they carry out their duties dictated in state code. The contentious rule, originally SB 167, is included in SB 163, a rules bundle containing eight separate rules bills.

SB 167 deals with Department of Environmental Protection human health standards for wastewater permits and pollutants — some of them carcinogenic — in wastewater discharge.

Hansen reviewed the history of the bill with committee counsel. Last July, following its triennial review of the rule, the DEP recommended an updated rule containing 60 of the U.S. EPA recommendations from 2015 – about 40 of them more stringent than current standards, the remainder less stringent.

In November, the interim Rule Making Review Committee, at the behest of industry, which wanted more time to study and localize the parameters, asked DEP to withdraw its recommendation and retain the standards EPA set in the mid-1980s and early 1990s.

In late January, the Senate Energy, Industry and Mining Committee restored the 60 parameters to the rule. Shortly after, Senate Judiciary took the 60 parameters back out. As the bill came out of the Senate, all stakeholders have until Oct. 1, 2019, to submit comments and recommendations to the DEP; DEP then has until April 1, 2020, to re-submit its proposed standards for the 60 contaminants for passage in the 2021 session.

During questioning, DEP Deputy Secretary Scott Mandirola said that among the issues the EPA considers when setting its recommendations are average fish consumption and average body weight, to estimate how much toxins people might take it. EPA estimates West Virginia fish consumption at 9.9 grams per day, less than half the national average of 22 grams.

For comparison, 9.9 grams is about a third of an ounce. At that rate, it would take about 12 days to eat a McDonald’s fish filet, about 18 days to finish a can of tuna.

Only three states have updated their standards since 2015, he said: Washington, Texas and Montana. Two others have their standards before the EPA for review. Pennsylvania and Virginia have just started working on theirs.

WVU public health professor Mike McCawley told the members that carcinogens can occur below levels detectable to lab equipment – an issue that industry has raised as a compliance problem – but that any amount of carcinogen poses a risk.

“The less risk you undergo, the better it is for your health.”

Hansen asked Rebecca McPhail, president of the West Virginia Manufacturers Association, why it needs more time and didn’t begin looking into this back in 2015 or 2016.

McPhail answered that while her members knew what EPA had done, they didn’t know what DEP would do until it did it. WVMA offered input, but couldn’t react to the unknown.

In January, she said, WVMA hired Henthorn Environmental Services to conduct a study on the 60 parameters, and such factors as body weight and water consumption, which will be complete in time for the October comment deadline.

Hansen proposed an amendment to restore the 60 parameters that DEP first proposed and were twice removed.

Committee vice chair John Kelly, R-Wood, opposed it, saying WVMA, the Business and Industry Council, the state Chamber of Commerce and the West Virginia Coal Association all oppose that action, along with the West Virginia Municipal Water Quality Association and a number of specific companies, including Dow Chemical in Charleston.

Kelly said the opponents fear the new measures will mean increased costs and lost jobs.

Hansen called for company representatives to appear and testify, but none were there except one consultant appearing of-counsel for Dow who was not authorized to speak for the company and could only take back questions to be answered as quickly as possible.

Hansen expressed frustration that he had to vote before he got his answers, but they exchanged contact information after the meeting.

His amendment failed in a roughly even voice vote called in favor of the nays by Committee chair Bill Anderson, R-Wood. No one called for division to confirm that.

The bill then passed in an overwhelming voice vote. Hansen didn’t vote either way – a common occurrence for opponents in voice votes in all committees.

SB 163 goes next to Judiciary.

Twitter @dbeardtdp

Email David Beard at dbeard@dominionpost.com