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State DEP advisory council creates work group to retool human health parameters for water pollution

MORGANTOWN — The Department of Environmental Protection’s effort to update its human health criteria for wastewater discharges – which began in 2018 and stalled as industry and environmentalists collided – took a tentative step forward Tuesday.

The DEP’s Environmental Protection Advisory Council agreed – not unanimously – to form a working group to recommend updates for the 2022 legislative session.

The eight-member council – consisting of members from industry, the environmental community, local government, public service districts and coal mining – was created to advise DEP on program and policy development and other matters.

DEP regulates – via a legislative rule – 60 human health water quality parameters for such pollutants as aluminum, arsenic, copper, barium and manganese or waste discharge permits. In 2018, DEP proposed updating them to match the most recent Environmental Protection Agency recommendations. Some became more stringent, some less so. (EPA actually sets parameters for 94 pollutants but DEP has regulated only 60 of them).

But at the behest of industry, which wanted more time to evaluate the standards and develop more state- and site-specific measures for some of the 60, the joint Rule Making Review Committee in November 2018 directed DEP to remove the updated standards and keep the old ones.

During the 2019 legislative session, one committee put the EPA/DEP-recommended standards back in, only to have Senate Judiciary take them back out in favor of a compromise delay maneuver. The measure that passed in SB 163 that year directed DEP to propose updates no later than April 1 this year for consideration during the 2021 session, following a public comment period, which just ended.

Instead, DEP reached a compromise, Laura Cooper, with DEP water quality standards program (a DEP staffer, not a council member) told the council members. It proposes to set standards for only 24 pollutants – making 13 of them less stringent than current standards – and put the rest into the hands of the work group that will meet monthly from June through May 2021 to draw up human health criteria proposals for the Legislature’s 2022 session.

Those 24 all match EPA recommendations, she said, and should be relatively uncontroversial. The extra year will allow the work group to hash over the more problematic parameters and bring a proposal to DEP for public comment and legislative approval.

Cooper told the members that states aren’t federally mandated to revise their criteria; it make recommendations and encourages states to adopt them.

Council member Angie Rosser, executive director of the West Virginia Rivers Coalition, said she supports the work group in concept but objected on several grounds.

One, she said, the one-year delay violates the legislative directive of SB 163. Ohio is updating all 94, she said, and West Virginia shares the Ohio River with its neighbor. “We are unnecessarily delaying these updates and leaving the public at risk.”

Cooper countered that the work group proposal meets the directive because they have 24 parameters ready for review in 2021 and it would be best to examine the others more closely and not arouse more conflict. “We felt that would get us to better results in the end.”

Cooper also noted that many states have run into similar conflicts and have not adopted the most recent EPA parameters. Pennsylvania is still trying to finish its update, while Virginia has completed its job but bases its parameters on a lower risk factor than West Virginia and Ohio.

Rosser also said that the Rivers Coalition has changed its 2018 position and joined with other environmental groups to oppose any changes to parameters to make them less stringent. “We should be doing everything to reduce risk.”

Most facilities are able to comply with standards the way they are, she said, so why make them less stringent? That shifts the burden from the polluter to the water treatment facility. “That’s not the kind of direction we want to go.”

Larry Harris, who also represents environmental interests on the council, agreed with Rosser that no parameters should be made less stringent.

Rebecca McPhail, president of the West Virginia Manufacturers Association, was pleased that the work group will take a closer look at the remaining parameters. “What we want to get at is what’s right for West Virginia,” she said.

The work group will be an advisory council subcommittee. Membership and meeting dates will be announced.

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