W.Va. Senate Committee Strips Water Standards From Rule, Offers Compromise Timeline

Feb 1, 2019

The West Virginia Senate Judiciary Committee voted today to remove a set of 60 proposed updates from Senate Bill 167, a rules bill that outlines a state regulation limiting pollution discharges into the state’s streams and rivers.

In a hearing that lasted about 15 minutes Friday afternoon, members of the Judiciary Committee voted unanimously to approve a proposed committee substitute to Senate Bill 167. The meeting took place during a brief recess from a floor session where members were debating amendments to a controversial education reform bill.

The Judiciary Committee’s substitute removed 60 updated human health criteria that the West Virginia Department of Environmental Protection (DEP) had proposed in July be added to the state's Water Quality Standards. It also added language that creates a timeline for new proposed updates to be brought before the Legislature.

Speaking during the committee hearing, Senate Judiciary Chairman Charles Trump (R-Morgan) characterized the committee substitute as a compromise.

“Is it a fair characterization of that to say that that got made and made absolutely everyone mad and dissatisfied at some level with this slight change, but does provide a delay,” he said. “And it provides a longer delay than environmental community would like to see. They’d like to see it move forward with no delay. And it provides less of a delay than the regulated community would like to see.”

Under the committee substitute, DEP must propose updates to the human health criteria in the rule before April 1, 2020 and put them out for public comment. The agency will submit the proposed updates for consideration by the 2021 legislative session.

Under the federal Clean Water Act, each state must write its own Water Quality Standards rules, but receives guidance and final approval from the U.S. Environmental Protection Agency. In 2015, the EPA released 94 updated human health criteria. After review, the DEP proposed adopting 60.Two-thirds of the updates made it so less of certain chemicals could be discharged into rivers and streams and one-third loosened pollution levels.

State environmental regulators spent more than a year drafting the updated rule and the process included multiple public comment opportunities.

The updates have proved contentious. The vote by the Senate Judiciary Committee to remove the proposed updates is not the first time they’ve been removed from the rule.

In November, the West Virginia Manufacturers Association asked the Legislative Rulemaking Review Committee to remove the updates. The committee obliged and asked DEP to hold more public comment to gather any additional data that might affect the water quality standards.

Last month, the Senate Energy, Industry and Mining committee voted to add back in the 60 updated human health criteria.

The committee substitute that was approved also included language that keeps the record open to allow the public and state regulators to submit comment.

Rebecca McPhail, president of the West Virginia Manufacturers Association said in an email that the new iteration of the Water Quality Standards represented a compromise.  

“The willingness to compromise by all parties involved provides an opportunity to carefully evaluate human health criteria and develop them with the benefit of state specific inputs, making them protective for West Virginians,” she wrote.

She added it is not just manufacturers who have concerns about the human health criteria.

 

“Municipal sewage plants, utilities and others would have problems complying with low limits that create additional burden and provide no additional protections to the public,” she said.

Environmental groups following the rule change expressed disappointment about the committee substitute passed by the Senate Judiciary Committee.

Angie Rosser, executive director of the West Virginia Rivers Coalition, said the rule as it stands now allows outdated science to govern the amount of pollutants that can be discharged into the state’s rivers and streams to the detriment of all West Virginians.

“The frustrating part of this for us is they had their chance to do this study. This has been out there for several years,” she said. “They could have provided input in the public process, but that didn’t happen and now suddenly there’s these large concerns being brought forth in the final hour of this triennial review of water quality standards.”

SB 167 now goes to the full Senate for consideration. The House will also need to take up the rules.