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Another attempt to tighten drinking water health criteria rule fails on House floor as Hansen amendment defeated

MORGANTOWN – Another attempt to tighten up a Department of Environmental Protection water pollution rule dealing with human health criteria failed on the House floor Thursday, when delegates overwhelmingly rejected an amendment to the rule proposed by Delegate Evan Hansen, D-Monongalia.

The rule is tucked into a bundle of rules contained in HB 2382, which was on second reading, the amendment stage, Thursday.

The rule has a long, contentious history. It deals with waste discharge permits. The Department of Environmental Protection first took it up in 2018. It proposed to update the 60 human health water quality parameters within the rule for such pollutants as aluminum, arsenic, copper, barium and manganese — to conform to the updated 2015 Environmental Protection Agency recommendations.

EPA actually sets parameters for 94 pollutants but DEP has regulated only 60 of them.

Some of the parameters were more stringent than existing parameters and some were less stringent, based on new data since the previous EPA recommendations made in the 1980s and 1990s.

At the behest of industry, represented by the West Virginia Manufacturers Association, 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.

In 2019, DEP defended, unsuccessfully, adopting the newest parameters. Then it backed off that position. Now, it proposes to adopt EPA recommendations for only 24 pollutants – which makes 13 of them less stringent than current standards. A work group is drawing up human health criteria proposals for the Legislature’s 2022 session.

Hansen said Thursday there should be no disagreement that the pollutants at issue are toxic; many of them cause cancer. That’s why there are criteria.

His amendment – which was co-sponsored by his three Monongalia County Democratic colleagues and other Democrats – proposed to adopt the 2105 EPA criteria where its recommendations were more stringent, and not adopt any where EPA offered more lenient recommendations. The amendment text lists 47 parameters to be updated.

Hansen supported his proposal by citing the U.S. Clean Water Act, which originally aimed to eliminate discharge of all pollutants into rivers and streams by 1985. The Monongahela River, the Ohio River and other waterways are cleaner now because water quality standards have been adopted and businesses have agreed to meet those standards. “We can protect human health while supporting our economy,” he said.

Judiciary chair Moore Capito, D-Kanawha was among the opponents. “We all want clean water for our families,” he said. “I thnk it’s really important to listen to the scientists.”

Hundreds of scientists are looking at this and they’ve taken their advice, taking a “toe in the water” approach by adopting the 24 and studying the rest, he said. “I think in this case we’ve followed the science.”

Several opponents said the DEP recommended this approach; no one on either side reflected back to 2018 when the DEP backed off its original proposal under pressure.

Delegate Geoff Foster, R-Putnam, who co-chairs the joint Rule Making Review Committee said no states have adopted all of the 2105 EPA recommendations and some states have modified the recommendations to suit their needs. And those recommendations were generic, not specific to West Virginia. An independent third-party study looking at West Virginia agrees with the approach in the proposed rule.

Hansen wrapped up the debate, noting that neighbor Ohio has, in fact, adopted all of the EPA criteria. “Let’s not pick and choose just because a lobbying group has given their go ahead,” he said.

The amendment failed 24-75 along party lines, with all local delegates voting with their party. The bill will be on third reading for passage on Friday.

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