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Would emergency rule weaken aluminum water quality standards?

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A revision to state water quality standards for aluminum has been proposed on an emergency basis by the West Virginia Department of Environmental Protection.

Judged solely on the new limits it would create, the proposal appears to be a significant weakening of the standards for aluminum.

But the DEP says it's an update.

"It basically is incorporating new information, or more updated information, regarding the hardness of the water and its effect on aluminum," said DEP spokesperson Kathy Cosco.

The aluminum proposal

Both chronic, or long-term, and acute, or short-term, exposure to aluminum at concentrations in the hundreds of micrograms/liter has been shown to stunt and kill aquatic organisms, including algae and fish.

But studies also show the toxicity of dissolved aluminum is directly related to hardness — essentially, mineral content — according to the DEP's filing.

The emergency proposal would replace the current numeric limits — for warm water, chronic and acute standards of 750 micrograms/liter and, for trout waters, a chronic standard of 87 micrograms/liter and an acute standard of 750 micrograms/liter — with limits based on site-specific calculations.

The proposed equation appears to significantly weaken the standard.

At the very lowest levels of hardness, it results in more stringent chronic and acute standards.

But at hardnesses above about 60 milligrams/liter — the range a random sampling of West Virginia streams falls into on DEP's website — the equation results in a much more lenient standard.

The chronic standard would rise to about 2,500 micrograms/liter aluminum at a hardness of 150 milligrams per liter and to over 4,000 when hardness is above 220. The pattern is the same for the acute standards.

The science shows that, in higher-hardness water, a higher aluminum limit can be as protective as the current limits, according to Scott Mandirola, director of DEP's Division of Water and Waste Management.

But, Mandirola said, hardness tends to be very low in headwater streams, especially undisturbed ones.

"Right now you've got a limit of 750, in the warm water streams, and most are sub-40 hardness and should have an aluminum limit in the 300 range. We are going to end up with tighter limits — which means in the future, if anybody wants to move into those headwaters, it will be more protective than what's out there now," he said.

A similar approach has been used to set standards in Colorado and New Mexico and was approved by those states' regional EPA offices and by EPA headquarters, according to DEP's filing.

EPA Region 3 in Philadelphia, which has to approve any change to the state's water quality standards, said the Colorado, New Mexico and West Virginia approaches all are based on laboratory aquatic life toxicity studies and that it would not have to conduct its own science on the West Virginia proposal.

Concerns

Dan Ramsey, a former employee of the Division of Natural Resources and the U.S. Fish and Wildlife Service, followed the regulatory process some years ago when the water quality standard was changed from one that applied to total aluminum to one that applies only to dissolved aluminum, and he has concerns.

"Aluminum stream chemistry is complex, and toxicity of the metal is dependent on factors other than hardness, especially in headwaters," Ramsey said.

"Early aquatic life forms are more susceptible to aluminum than mature forms, and changes in water chemistry through time, organic matter, and water quality at mixing zones are also factors. There are also different forms of aluminum that must be considered, and toxicity of some forms is not well understood," he said.

Is it an emergency?

Agencies propose emergency rules when the legislative rulemaking process would take too long to avoid negative consequences.

DEP's justification for regarding this as an emergency is that, without it, the coal and quarry industries will incur unnecessary water treatment costs and that the agency will devote resources that could be put to better use.

"By amending both the dissolved aluminum and the beryllium standards, West Virginia can avoid substantial harm to both the regulated community and the agency while maintaining the level of protection necessary for its aquatic life and human health," the emergency rule filing reads.

Secretary of State Natalie Tennant has until March 13, to decide if there truly is an emergency.

Ramsey doesn't think so.

"I don't believe there is evidence to support the present effort to change the aluminum standard, and certainly there is no ‘emergency' to address," he said.

In anticipation of the rule revision moving forward, DEP has asked coal and quarry operators holding discharge permits with aluminum effluent limits or monitoring requirements to have water samples analyzed for hardness twice each month.

If approved by Tennant, EPA has 60 days to approve or 90 days to disapprove the revision. If approved, the change to the water quality standards would be in effect, according to the practice for emergency rules, for up to 15 months.

For a permanent revision of the standards, the changes would be included in the 2014 Triennial Review of water quality standards for legislative and EPA approval.

A public hearing on the emergency rule is scheduled for 6 p.m. on March 27 at DEP's offices in Charleston.

Written comments may be mailed until that time to Kevin Coyne, Water Quality Standards Program, West Virginia Department of Environmental Protection, 601 57th Street SE, Charleston WV 25304.