W.Va. House committee votes to weaken EPA standard

CHARLESTON, W.Va. (AP) -- After a contentious public hearing pitting the coal industry against environmental advocates, the West Virginia House Judiciary Committee, in a near unanimous voice vote, advanced legislation that would weaken the state's selenium regulations.

The bill would authorize the state Department of Environmental Protection to conduct a study to determine state-specific guidelines for how much selenium is acceptable in state waters.

If sites are found to have exceeded selenium guidelines, that would no longer be treated as a punishable violation, but would instead trigger additional monitoring.

The U.S. Environmental Protection Agency sets the guidelines for how much selenium is permissible and any change in the state's standards would have to be approved by the agency. If West Virginia changed its standards and the EPA rejected the change, it could lead to litigation.

The EPA has been revising its selenium standards since 2004. An agency spokesman said officials expect to finalize them by the end of this year.

The bill's sponsors contend that the federal regulations are overly restrictive and that selenium has not been proved harmful in West Virginia waterways. They say that West Virginia's fast-moving streams can tolerate higher selenium levels than slow moving rivers and stagnant lakes.

"Our state is better equipped to handle this," said Del. Justin Marcum, D-Mingo, one of the bill's sponsors. "Not a bunch of outsiders coming in telling us how to manage our coal industry."

Del. Clif Moore, D-McDowell, criticized the bill's opponents for impeding economic growth in southern West Virginia and urged the bill's passage.

"I wonder what all these do-gooders were doing a few years ago when McDowell County was literally dying on the economic vine," Moore said.

Selenium is a naturally occurring element that mountaintop removal mining releases into waterways. Studies have found it's harmful to aquatic life, and high-level exposure in humans can damage the kidneys, liver, and central nervous and circulatory systems.

Both supporters and opponents of the bill cited a 2010 study by the state Department of Environmental Protection on selenium's impact on selected fish populations in West Virginia.

Dianne Bady, founder and director of the Ohio Valley Environmental Council, displayed pictures of fish, documented in the study, with massive under-bites and crooked spines and accused the bill's authors of dishonesty and misreading the research.

"House Bill 2579 states the purpose of this bill is to protect state waters," Bady said. "This is a dishonest statement. In reality the purpose of this bill is to allow mountaintop removal companies to pollute West Virginia streams with levels of selenium that are known by the best scientific evidence at this time to cause serious harm to fish and other aquatic life."

Jason Bostic, vice president of the West Virginia Coal Association, said there are four different kinds of selenium and they all have different effects, which are difficult to document.

"For selenium to have an adverse impact it must accumulate in the tissue. Mere exposure to selenium in water is not enough to be able to cause a problem," Bostic said. "Despite searching for an impact, none can be found in West Virginia streams."

Bostic said that the deformities found in the 2010 study are statistically insignificant and have not been verified by subsequent research

The 2010 study found that deformities in fish populations in West Virginia waters were "associated with waterborne selenium exposure."

Randy Huffman, the secretary of the Department of Environmental Protection, acknowledged that the study found fish deformities attributable to selenium, but said that more study was needed.

"We drew some conclusions," Huffman said of the 2010 report. "To caveat that, there is not enough in this study for us to make any conclusive statements."

The bill's supporters pointed to the fact that the EPA selenium regulation placed on streams near coal mines is 10 times stricter than the regulation placed on drinking water. EPA has not commented on how it arrived at its standards, but Tom Clarke, an Environmental Protection department spokesman, said that the distinction is probably due to the differences between aquatic life and humans.

"People are larger and much more complex organisms than some of the organisms living in our streams and therefore are capable of absorbing and ingesting higher concentrations of selenium without being harmed," Clarke said last week. "And another thing is how much water you drink a day is different than a tadpole that is constantly exposed over its whole body."