ÂÒÂ×ÄÚÉä

State Department of Environmental Protection Deputy Secretary Scott Mandirola told the committee the proposal to change wouldn’t weaken those standards following a negotiation with the West Virginia Manufacturers Association.

But Mandirola admitted the proposed change — which was not available on the Legislature’s website prior to the committee’s advancement of it to the markup and discussion stage of the legislative process — could result in less stringent pollution limits.

“It would open the door for more pollutants into our headwaters, and we don’t want or need any more of these dangerous chemicals or toxins in our waterways,� executive director Jennie Smith told the committee.

Examining Ohio River fecal bacteria measurement

The proposed rule change would allow removal of the drinking water use designation upon documentation that shows surface waters have no or limited capacity to “reliably and continually support� public water supply use. Under the proposal, “key additional information� to be part of the request for a change in the designation would include confirmation that the:

• Water isn’t used for public water supply
• Nearby population uses an alternative drinking water supply
• Current supply is adequate to accommodate “reasonably anticipated future growthâ€�

Proposed removal of the drinking water use designation, known as Category A, would be subject to a 45-day public comment period and a public hearing and submitted to the U.S. Environmental Protection Agency for approval.

Then the removal, which must still be protective of downstream uses per the federal Clean Water Act, would become effective for permitting and compliance purposes.

Under the newly proposed rule change — which is labeled HB 2236 within the larger rules package named HB 2233 — fecal coliform would be the bacteria with a maximum allowable level for the main stem of the Ohio River despite E. coli, a type of fecal coliform, being commonly recognized as a more specific indicator of health risks.

In 2022, the EPA told the DEP it should reconsider its use of fecal coliform as an indicator of illness to swimmers. The EPA noted it has discouraged the use of fecal coliforms as indicators of fecal contamination since 1986. The federal agency has said E. coli is a more specific indicator of health risk from recreational water contact in fresh water than total coliforms.

Under the newly proposed rule change, the maximum allowable level of fecal coliform for the Ohio River would be 2,000 colony-forming units per 100 milliliters as a monthly geometric mean based on at least five samples per month during the non-recreational season (November through April).

But under the as advertised in November after review by the Legislative Rule-Making Review Committee, E. coli would have replaced fecal coliform as the bacteria with a maximum allowable level for the Ohio River main stem, with that level set at 1,260 colony-forming units per 100 milliliters.

Committee counsel Robert Akers told the committee he was told fecal coliform was a better indicator of problems which might affect water and the people using it for recreation.

Mandirola told the committee the EPA indicated it could not approve the previously proposed change from fecal coliform to E. coli and that the DEP would have time to “pull more data� and evaluate the relationship between fecal coliform and E. coli at higher levels before its next triennial review of water quality standards.

Proposed amendment rollout questioned

Delegate Kayla Young, D-Kanawha, said during the committee meeting members did not have the abstract summary of the rules package as Akers was introducing it for the committee’s consideration, which detailed the proposed amendment to allow drinking use designation removal and change the Ohio River fecal coliform provision. The amendment was not publicly available.

Mandirola told the committee a change to the state’s drinking water use designation approach was proposed by the West Virginia Manufacturers Association.

He said the EPA advised the DEP about the “use-and-value demonstration� designation change process that the proposed amendment would implement after the DEP found originally proposed legislative language unacceptable.

“You don’t need to go through a full-use [water quality standard] ... analysis to remove a drinking water use [designation],� Mandirola said.

Removal of drinking water use designation would mean that use wouldn’t be considered in calculating water pollution permit limits, Mandirola said.

Mandirola acknowledged under questioning from Delegate Evan Hansen, D-Monongalia, that redesignation of an Ohio River tributary into which the Chemours Company’s Washington Works chemical plant in Wood County could discharge toxic chemicals known as PFAS could result in additional discharges of those chemicals.

In December, the West Virginia Rivers Coalition filed a federal lawsuit against Chemours to stop alleged permit exceedances for pollution discharges into the Ohio River. The Greater Cincinnati Water Works is concerned elevated PFAS levels reportedly being discharged by Chemours from its Washington Works plant may pose an increased public health risk to Kentucky and Ohio communities that use the Ohio River as their drinking water source, according to testimony filed in the case last month.

Manufacturers Association counsel David Yaussy told the committee his trade group “reached agreement on� the proposed drinking water use designation change with the DEP.

Hansen predicted permittees would never take on the expense of pursuing a drinking use designation change if it would result in more stringent permit limits.

“Permittees are concerned about what their permits say,� Yaussy responded.

Smith noted that industry is already meeting drinking water use designation standards.

“So there’s really no valid argument on our side to weaken any standards,� Smith said.

Smith also said the Rivers Coalition, which offered formal comments on the proposed rule last year, was not aware of the drinking water use designation and Ohio River fecal coliform amendment over the weekend from Hansen.

“In fact, if you had not told me, I wouldn’t have known, and West Virginia Rivers Coalition and the members we represent would not have had a voice today in this,� Smith told Hansen.

Smith and Hansen noted that under the proposed amendment, the drinking water use designation removal process would bypass state legislators who currently sign off on water quality standard changes, with the removal becoming effective after the 45-day public comment period and EPA approval.

W.Va. contending with poor drinking water quality

West Virginia’s percentage of public water systems with health-based violations of the federal Safe Drinking Water Act in 2022 was 22.7%, according to U.S. Environmental Protection Agency data, far exceeding the 4.5% national average. West Virginia’s clip of public water systems in this category had been just 4.7% in 2015.

The percentage of public water systems in West Virginia identified as priority systems — systems on a list indicating unresolved serious or continuing violations for at least a quarter of the year — was 42.2% in 2022, dwarfing the national average of 3.2%.

Acute health-based violations, which have the potential to produce immediate illness, have been far more prevalent among West Virginia public water systems than the rest of the country on average.

West Virginia’s percentage of public water systems with those violations was 2.7% in 2022, exceeding the national 0.8% clip and the state’s own 1.2% clip in 2015. West Virginia public water systems also struggle to meet public notice requirements.

Legislators have opened door to more water pollution before

In 2022, the Republican-supermajority Legislature passed a legislative rule through which the body ceded its own power to review site-specific revisions to human health criteria and weakened water quality standards for probable carcinogens in line with federal recommendations.

The DEP-proposed rule quickened the public review process for evaluating future adjustments to water toxin levels deemed acceptable.

The House rejected amendments by two Democrats at the time that would have kept the state Legislative Rule-Making Review Committee in the review process for site-specific revisions to human health criteria and struck down the rule’s weakening of human health water quality criteria for DDT.