Department of Environmental Protection officials are proposing water quality rule changes that would allow more cancer-causing chemicals to be discharged into West Virginia rivers and streams and could make it somewhat easier for industry to have drinking water protections removed for some state waterways.
Agency officials say the changes are DEP's response to a legislative mandate to re-examine how West Virginia decides which state streams will be designated as potential drinking water sources and to make the stream-flow figures used for carcinogen limits more closely align with long-term exposure risks and U.S. Environmental Protection Agency recommendations.
But environmental groups are opposing the DEP proposals, one of which was rejected after being dubbed the "Cancer Creek" bill when it was the subject of a heated legislative battle more than two decades ago.
That proposal, which mirrors one frequently lobbied for by state industry groups, would change the stream flows used in pollution limit calculations from one using low-flow conditions to one using average flow - a move that agency officials acknowledge allows greater levels of cancer-causing chemicals.
A public hearing on the water rule change proposals is scheduled for 6 p.m. on Tuesday at the DEP headquarters in Kanawha City. After reviewing public comments, DEP will make its final decision, and then any changes go to the Legislature for its consideration in 2017. Water rule changes also need approval from the EPA.
On Friday, DEP Secretary Randy Huffman defended his agency's proposals, which come on the heels of Huffman's successful efforts working with environmental groups to win legislative approval to add drinking water protections for portions of the Kanawha River following the January 2014 Elk River chemical spill water crisis.
"I don't view this as a step backward," Huffman said of the DEP's rules package. "I view it as a step in the right direction."
One of the DEP proposals would rewrite a section of the state's water quality standards that determines what category of pollution limits would apply to streams, based on whether those streams are used for drinking water, recreation, or other purposes.
For years, industry officials have pushed for changes to this section, looking for a way to streamline the removal of specific uses - primarily drinking water - from streams, without having to seek legislative approval every time such a change is made. Industry officials also oppose the long-time policy of DEP, which was to apply drinking water protections to all streams across the state.
Last year, when lawmakers approved Huffman's proposal to add drinking water protections for the portion of the Kanawha River that flows through downtown Charleston, they also added a mandate that DEP consider changes to the use-designation rule as part of its triennial review of water quality standards.
The legislation (HB2283) required DEP to "consider ... potential alternative applications ... for the drinking water use designations," taking into consideration "stream flow, depth, and distance to a public water intake." The bill did not require DEP to make any changes.
In response, DEP has proposed to allow changes in use designations for streams, such as removal of drinking water protections, through the process of the agency's review of water pollution permit applications. The change says that drinking water protections can apply not just to streams that are currently used for that purpose, but also streams that "are capable of being used" for human consumption.
But, by allowing drinking water protections to be removed during the permit process, rather than through a formal change to the state standards, it allows such changes without specific legislative approval being needed.
Rebecca McPhail, president of the West Virginia Manufacturers Association, said last week that her group believes DEP did not really consider all of the factors that lawmakers mandated be considered as part of the reconsideration of the use-designation rules for streams.
"This is disappointing," McPhail said. "We continue to urge the DEP to comply with the legislative directive to consider these criteria."
McPhail said, though, that her group is pleased with another change: DEP's move to have water pollution limits for cancer-causing chemicals based on an average flow figure - called the "harmonic mean" - rather than the state's current practice of using a low-flow figure. The state currently uses a flow referred to as "7Q10,:" which is the lowest seven-day consecutive flow that occurs at least once every 10 years.
McPhail's group and the West Virginia Chamber of Commerce both urged DEP to adopt the harmonic mean method during the agency's public comment period, and industry groups have been advocating the change off and on for years. In 2011, when lawmakers adopted harmonic mean for just a short section of the Ohio River, in a move to help one company meet pollution limits, industry lawyer Dave Yaussy compared it to the camel's nose appearing under the tent flap.
The harmonic mean issue first emerged in the early 1990s, when then-Gov. Gaston Caperton's administration proposed it as part of their plan to lure a $1 billion pulp and paper mill to Apple Grove in Mason County. At the time, the Affiliated Construction Trades Foundation, which feared the mill would be built with non-union labor, joined with environmental groups in fighting the rule change.
The ACT Foundation, a coalition of construction unions, funded an ad campaign that referred to the rule change as the "Cancer Creek" bill. Eventually, a committee formed by Caperton and legislative leaders to sort out the matter rejected the move to harmonic mean.
It's not clear exactly what's changed since then to prompt DEP officials to put harmonic mean back on the table. Agency officials say part of what they're doing is trying to respond to the legislative mandate to consider stream flow. But that mandate was in the context of a different section of the water quality standards regarding whether there was adequate flow in a stream for it to be considered as a potential drinking water source.
In explaining their reasons, state officials - frequent critics of the U.S. EPA on other matters - repeatedly note that the federal agency recommends harmonic mean be the flow used in calculating limits for cancer-causing chemicals. But EPA recommended it back in the 1990s, too. Back then, the state spent considerable time and political effort to review the issue, and made a policy decision to stick with 7Q10.
Laura Cooper, assistant director for water quality standards at the DEP Division of Water and Waste Management, said that the reasoning behind using harmonic mean is that EPA numbers for safe levels of cancer-causing chemicals are based on the risk of long-term exposure to those chemicals by drinking water over a period of many years. So, using an average flow makes more sense than a low-flow condition that might rarely happen.
Huffman, the DEP secretary, said that using a term like "Cancer Creek" to describe the agency's proposal "inflames the discussion in a way that is just not correct."
"We're not going to be creating creeks that cause cancer," Huffman said. "It's not a step backward. It's easy to see it that way, but there is no more protection added by using 7Q10 than there is from using harmonic mean."
In a summary of its concerns about the DEP proposals, the West Virginia Rivers Coalition said that, while harmonic mean is recommended by EPA, it "is not appropriate in all circumstances, especially during drought conditions because it allows higher concentrations of carcinogens into our waters during low-flow periods."
The group opposes the change, and said before approving it, DEP should work with the U.S. Geological Survey on a study to determine the best estimates of both harmonic mean and low-flow for streams across the state.
One thing that DEP officials acknowledge is that the switch to harmonic mean would result in permit limits that allow more cancer-causing chemicals to be discharged into West Virginia's streams. How much more? Of what chemicals and in what rivers or streams?
DEP officials say they don't know. A statewide review to answer those kinds of questions hasn't been done.
Cooper said that the allowed pollution limits would be "somewhat higher" using harmonic mean. But, she added, "I don't know the extent of it."
Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.