W.Va. Legislature Adopts Stripped Down Water Pollution Rule

Mar 5, 2019

The West Virginia Legislature has passed a bill containing a set of environmental regulations, including a controversial water pollution rule that was pared down during the legislative process.

The House passed Senate Bill 163 on a 78-22 vote. The measure, which passed in the Senate last month, is now in effect.

Among other rule updates, the bill contained the state Department of Environmental Protection’s proposed update to the state’s water quality standards. The rules govern pollution discharge into the state’s streams and rivers.

Environmental and water quality advocates said the Legislature’s decision to not pass the updated rule means the state is relying on outdated health standards for carcinogens and other pollutants set in the 1980s and 1990s.

“It’s distressing to see lawmakers continue to push aside years of scientific study simply because a few industrial polluters want them to,” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “Regrettably, this vote sends the message that our residents don’t deserve those protections, no matter what the science says.”

Ongoing Update Saga

The water quality standards have been embroiled in controversy since lawmakers first considered it in the Senate Rulemaking Review Committee in late November 2018.

After more than a year of public comment and deliberation, the WVDEP proposed updating human health standards for 60 of the 94 human health criteria updates the U.S. Environmental Protection Agency suggested in 2015.

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.

The rule, federally mandated under the Clean Water Act, was then presented to the Senate Rulemaking Review Committee. At a Nov. 27 meeting, the committee agreed to remove 60 updates to human health standards the agency had proposed at the behest of the West Virginia Manufacturers Association.

The trade association requested the agency gather more state-specific data. At a Jan. 18 public meeting at DEP headquarters in Charleston, agency officials said they received no new information.

Since then, the 60 updates were added back in by the Senate Energy, Industry and Mining Committee and then removed again by the Senate Judiciary Committee.

The full Senate passed a committee substitute the Judiciary Committee created on a 20-12 vote earlier this month. Under the committee substitute, the updates were removed, and a two-year timeline was established in which DEP must propose updates to the rule’s human health criteria.

The bill states 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.

The House then considered the same legislation. Lawmakers in the House Energy and Judiciary committees proposed a similar amendment to include the 60 updates that were struck down.

On Monday, 10 delegates again introduced the amendment on the floor. It failed on a 34-64 vote.

The WVDEP did not immediately return a request for comment.  

Industry Opposition

Much of the pushback against the update has come from industry, including the West Virginia Manufacturers Association and individual companies, such as Dow Chemical and DuPont that said updating the human health standards would require costly changes to their equipment in order to comply.

However, at the House Energy Committee hearing last month, a DEP official told lawmakers a preliminary analysis of permits held by Dow Chemical showed that using the proposed updated pollution limits, in which 25 become less stringent and 35 more stringent, the company would have no trouble complying with the “majority” of the limits.

A lawyer speaking on behalf of Dow Chemical told the committee the company was unable to send a representative to testify and she could not answer questions, but would take written questions to the company and provide answers at another date.

Speaking Tuesday on the House floor, Del. Mike Pushkin, a Democrat from Kanawha County, said as a representative from the heart of West Virginia's chemical valley, he sympathizes with the decline of the industry, but he said not updating rules to incorporate the best available science would not bring jobs back to the region.

“I cannot bring myself to vote for this particular rules bundle because of the way that the rule-making process was really dictated by industry when it comes to those water quality standard rules,” he said. “I take offense to that. I don't think that the best interests and the health and welfare of the citizens West Virginia were taking into consideration. I think it was more about what industry dictated and I have a problem with that.”

Del. Evan Hansen, a Democrat from Monongalia County and sponsor of the amendment in the House Energy Committee and on the floor, introduced Senate Concurrent Resolution 39 in the House. It would create a Joint Select Committee to further study the issue. The resolution was adopted in the Senate last month and heads now to the House Judiciary Committee for consideration.