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House votes 99-0 on coal-backed selenium bill

CHARLESTON, W.Va. -- The House of Delegates on Friday approved legislation that mining lobbyists hope will lead West Virginia to weaken its water pollution limit for toxic selenium discharges from coal operations.

Delegates voted 99-0 to approve the bill (HB2579) and send it on to the Senate.

House Judiciary Chairman Tim Miley, D-Harrison, said the bill is "an important one for the coal industry" and would revise the state's current water quality standard for selenium.

Miley urged fellow lawmakers to approve the bill "so that the coal industry is not crippled," citing what he said were "punishing fines" for violations of the existing pollution limit.

"This bill creates flexibility," said Miley, whose committee approved the bill Monday.

Selenium discharges from mountaintop removal have been increasingly linked with water-quality violations, and scientists are concerned about developmental damage and reproductive problems in fish populations downstream from mining.

In 2003, a broad federal government study of mountaintop removal mining found repeated violations of West Virginia's selenium standard downstream from mining operations. The following year, a U.S. Fish and Wildlife Service report warned of more selenium problems downstream from mining sites. In December 2011, a peer-reviewed paper published in the Proceedings of the National Academy of Sciences concluded that selenium discharges have deformed fish downstream from mining operations in the Mud River watershed.

The House-approved bill itself does not change the current West Virginia selenium standard. Instead, the legislation would require the state Department of Environmental Protection to develop within two months a new "implementation plan for the selenium current criteria."

Under the bill, the DEP plan must include:

• Implementing the current criteria -- 5 micrograms per liter -- as a "threshold standard."

• Monitoring any selenium discharges to determine which form of the pollutant is being emitted.

• Surveying fish populations in any waterways "to assess any possible impacts" from sites where that threshold criteria is exceeded.

The bill also requires the DEP to report any monitoring data to the Water Research Institute at West Virginia University "to assist with the development of a state-specific selenium criteria that is protective of state waters."

The legislation, though, does not specifically instruct the DEP to write state-specific criteria, and does not mandate whether any future such criteria would be stronger or weaker than the existing standard. Under the federal Clean Water Act, any such changes in the state's standard could not take effect unless they are approved by the U.S. Environmental Protection Agency.

A companion Senate bill is co-sponsored by 28 of the Senate's 34 members, and Gov. Earl Ray Tomblin this week said at a coal industry convention that he supports the measure.

Coal industry officials say the state's current standard is overly and unnecessarily stringent. Mine operators, though, are less concerned about paying fines for violations than they are about being forced -- mostly through citizen-group lawsuits, rather than DEP actions -- to spend millions of dollars to reduce selenium runoff and comply with the existing standard.

House supporters of the bill have portrayed it as an effort to allow West Virginia to set its own selenium standard and to fight the Obama administration's efforts to tighten restrictions on coal.

Delegate Justin Marcum, D-Mingo, for example, said during a public hearing earlier this week that West Virginia doesn't need "a bunch of outsiders coming in telling us how to handle our coal industry.

"This is not something we need to turn over to Washington, to people who have never been in our state," Marcum said. "We can manage ourselves just fine."

The selenium standard was set years ago by the state Environmental Quality Board, although it is based on an EPA recommendation. Coal industry lobbyists have tried for years to get lawmakers to weaken the standard, and the West Virginia Coal Association tried again just last year to get the DEP to do so on its own.

Selenium is a naturally occurring element found in many rocks and soils, and it is an antioxidant needed in very small amounts for good health.

In slightly larger amounts, however, selenium can be toxic. Selenium damages the reproductive cycle of many aquatic species, can impair the development and survival of fish and can damage gills or other organs of aquatic organisms subject to prolonged exposure. It also can be toxic to humans, causing kidney and liver damage, as well as damage to the nervous and circulatory systems.

Coal industry officials are fond of pointing out that West Virginia's current long-term aquatic life water-quality standard for selenium, 5 micrograms per liter, is far more stringent than the EPA's drinking water standard of 50 micrograms per liter. However, selenium bioaccumulates, meaning that a certain concentration in water has the potential to build up by several orders of magnitude by the time it reaches fish and wildlife.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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