Selenium hearing postponed again to March 4 - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

Selenium hearing postponed again to March 4

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A hearing at which lawmakers will consider arguments for and against a bill proposing to convert the state's water quality standard for selenium from an enforceable limit to a "threshold" will take place at 2 p.m. on Monday, March 1.

"The Legislature finds that (the U.S. Environmental Protection Agency) has been contemplating a revision to the federally recommended criteria for several years but has yet to issue a revised standard," reads House Bill 2579, introduced by primary sponsor Delegate Rupert Phillips, D-Logan.

"Because of this uncertainty," it continues, the state Department of Environmental Protection would be directed to treat the controversial and much-studied water quality standard of 5 parts per billion not as a limit that triggers enforcement action but instead as a threshold that triggers further study.

The environmental community, which long has pressed for enforcement of the standard, is concerned.

"It appears to us from the bill that what the coal industry wants is for DEP to do a new study and institute state-specific criteria," said Don Garvin, legislative coordinator and lead lobbyist for the West Virginia Environmental Council.

Selenium is a natural element released from soil and rock into surface waters by some coal mining operations.

At high enough concentrations, it has been shown to threaten the reproduction and survival of some aquatic species, but removing it from wastewater discharges is expensive.

Coal producers long sought and obtained from the DEP extensions, or compliance schedules, for meeting the 5 parts per billion standard — a standard equivalent to the EPA's current recommendation — because, they said, the cost of compliance was too high.

But a series of court settlements have forced some big operators to pay those costs.

In August 2010, a judge ordered Patriot Coal to clean up selenium discharges at its Ruffner and Hobet mines at a cost eventually estimated at $95 million.

In September 2011, Arch Coal agreed to a settlement in which it would install equipment to end violations of the selenium standard at five outlets in Logan County, the cost of which was not estimated in the settlement.

A December 2011 settlement required Alpha Natural Resources to construct selenium treatment facilities at 14 discharge points at a cost estimated at more than $50 million. More discharges were the subject of another, later lawsuit.

Then, in January 2012, Patriot agreed under legal pressure to build treatment systems for 43 outfalls. The company later reported its total selenium treatment liability at more than $400 million.

Compliance deadlines in 2014 are bearing down.

Bill sponsor Phillips said he worked with the West Virginia Coal Association and members of the coal industry to draft the bill.

"I support coal mines 120 percent," said Phillips, who sells electric motors and whose livelihood depends on the coal industry.

"Patriot Coal filed for bankruptcy last year. They had over $100 million invested in selenium plants," he said. "If this bill would have been in effect two or three years ago, they could possibly have avoided bankruptcy."

The EPA has had revised selenium criteria in draft since 2004, explained coal association Vice President Jason Bostic.

But meanwhile, Bostic said, the EPA's previous recommendation stands and is forcing the installation of millions of dollars of treatment systems that have been in development and aren't always perfected yet.

He explained what it would mean for the standard to serve instead as a "threshold."

"If it's exceeded, the operator, under order of the DEP, would have to do an aquatic life survey (downstream of) the operation to determine if there has been an impact," he said. "If so, the thing would become enforceable again and company would have to install a treatment system or find some other way to comply with the standard."

Results of aquatic life surveys would be sent to the West Virginia Water Research Institute at West Virginia University to help with the development of a new, state-specific water quality criterion for selenium.

"We think that it's time for the state of West Virginia to collect data and develop its own selenium water quality standard that's protective of the unique conditions you find in West Virginia," Bostic said. "HB 2579 is a first step towards doing that."

Asked about where the industry would get baseline aquatic life survey numbers to compare with since the bill does not require pre-discharge surveys, Bostic said surveys have been conducted for other regulatory requirements, "so hopefully we'd have baseline data."

But, he added, "selenium's effect is easily observed."

The change to a threshold would have to be approved by the EPA, but Bostic said he doesn't think that would be a problem.

"We think it would be tough for them to take issue the way the bill is written because it ties the applicability of the standard to an impact," he said. "If there is no impact, what good is blind allegiance to a number?"

It's probably the most perplexing environmental issue facing the coal industry in West Virginia, he said.

The Thursday hearing was scheduled midday Tuesday, leaving little time for preparation, Garvin said.

"We unfortunately had no time to get experts from the industries that have developed treatment systems for this," he said, referencing developers such as CBA Environmental of Pennsylvania, which makes a system Alpha Natural Resources has praised, or Liberty Hydrologic Systems of South Charleston, which developed a system tested by Arch Coal.

Opponents of the bill will ask whether DEP is enforcing the compliance schedules and will press lawmakers to seek additional information about the wisdom of this bill, he said.

The reason the hearing was rescheduled from Feb. 28 to March 1 and again to March 4 was because of a relatively new House of Delegates rule requiring that public hearings be scheduled with two days' notice, Garvin said.  Neither of the first two meeting times met that requirement.

HB 2579 is on the committee's agenda for the afternoon of Monday, March 4 and could go to vote directly after the hearing.

The hearing will take place in House Judiciary in room 410M in the capitol, or may be heard via streaming audio at http://www.legis.state.wv.us/live.cfm.