A West Virginia House committee on Tuesday, Feb. 19, voted down an amendment that would have restored the state’s water quality standards to the version originally proposed by state environmental regulators last summer.

The House Energy Committee rejected an amendment by Del. Evan Hansen, a Democrat representing Monongalia County, that would have re-inserted 60 proposed human health water quality standard updates into the state rules that govern pollution discharge into the state’s streams and rivers.

The Water Quality Standards rule within SB 163, formerly SB 167, has been embroiled in controversy since lawmakers first considered it in the Senate Rulemaking Review Committee in late November.

At the behest of the West Virginia Manufacturers Association, the committee agreed to remove 60 updates to human health standards that the West Virginia Department of Environmental Protection (DEP) had proposed.

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 created by the Judiciary Committee 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 Energy Committee Tuesday afternoon took up the committee substitute after two brief recesses to get the correct bill language in front of the lawmakers.

Failed Amendment

The committee heard testimony from DEP, West Virginia University Public Health Professor Michael McCawley and industry representatives.

In his line of questioning with DEP Deputy Cabinet Secretary Scott Mandirola, Hansen, a recently-elected delegate from Morgantown and environmental scientist, highlighted the years-long process the agency underwent before proposing its original draft rule in July.

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 began contemplating EPA’s updates in late 2015. The process included multiple public comment opportunities.

“Since 2015, we had, our water quality standards program has looked at those to try to figure out [sic] what variables changed in each of the compounds to determine the changes that were made,” Mandirola said.

Hansen also asked Mandirola about how the agency deals with regulating some pollutants set at levels within the water quality standards that make them hard to detect during testing.

Manufacturers have expressed concern they may not be able to comply with DEP’s proposed updates to human health criteria because some may set pollutant levels so low they cannot be detected through testing.

Mandirola noted that under the current water quality standards, some pollutant levels are set to levels that cannot be detected by a lab and the agency has a protocol in place to deal with them. He said, under the proposed updates, some pollutant levels would also be hard to detect.

“If you're asking are some of the criteria currently below the limit of detection, and are some of the updates will they also still be below detection, yes,” Mandirola said.

The Dow Factor

Hansen also asked Mandirola about a spreadsheet DEP put together analyzing some of Dow Chemical’s permits issued under the current water quality standards rule. The company, which operates at three facilities in South Charleston, had previously expressed concern about the updates when the rule was being debated in the Senate.

Mandirola said the agency reviewed “a couple of permits” issued to Dow to see the impacts of the proposed changes. He said with the exception of a few phthalates, which were broken out from one category into five separate chemicals in the new proposed updates, it appears Dow’s current permits would sufficiently allow the company to comply with the proposed changes to the rule.

“We identified a few other compounds that could potentially be issues, but the majority of the 60 compounds we didn't see a glaring issue with,” Mandirola said.

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.

Hansen’s amendment drew fierce opposition from some in the committee.

House Energy Committee Vice-Chairman Del. John Kelly, a Republican from Wood County, said adding the 60 proposed updates back into the rule was not necessary because most states across the country haven’t adopted EPA’s 2015 updates.

He listed a series of trade associations and companies that he said opposed the rule, including the West Virginia Manufacturers Association, West Virginia Coal Association, West Virginia Chamber of Commerce, Chemours, DuPont, Dow Chemical, Mountain State Carbon and Westlake Chemical.

“This amendment is a job killer,” said Del. Eric Porterfield, a Republican from Mercer County.

In his closing remarks before the committee voted on his amendment, Hansen expressed frustration that the company that was previously vocally opposed to the updated water quality standards wasn’t present to take questions before the House Energy Committee.

He noted adopting the updated human health criteria, as DEP has recommended, is keeping with the most up-to-date science.

“Some of these rumors that are floating around that this is going to kill jobs or rumors that these are going to cause certain facilities to move out of the valley we have nothing on the record -- It's just rumors right now,” Hansen said. “And it's unfortunate because we had an opportunity to get something on the record today, but I was told I couldn't ask those questions. I have to submit them in writing, and we need to get the answers after we vote. And I don't think that's right.”

SB 163 now heads to the House Judiciary Committee before being considered by the entire body.