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DEP aluminum rule change criticized

CHARLESTON, W.Va. -- Citizen and environmental groups on Wednesday evening blasted a Tomblin administration emergency rule to weaken West Virginia's water quality limits for the toxic metal aluminum.

Leaders of the West Virginia Environmental Council, the Rivers Coalition, the Sierra Club and Coal River Mountain Watch called the move another state Department of Environmental protection giveaway to the coal industry.

"There is simply too much at stake to hastily make such a drastic change," said Angie Rosser, executive director of the Elkins-based Rivers Coalition.

Don Garvin, lead lobbyist for the environmental council, said he was especially disappointed that DEP made the change through an "emergency rule," bypassing the normal public review process and not talking with citizen groups prior to issuing the change.

"The public has been cut off," said Garvin, who said concerns about such actions by DEP were a big reason citizen groups had opposed moving water quality rulemaking duties to that agency from the state Environmental Quality Board in 2005.

In its emergency rule, DEP adopted a sliding scale that generally ties allowable concentrations of aluminum to water "hardness," or mineral content. Streams with harder water, or higher mineral content, would generally have higher allowable levels of aluminum.

The water quality standard is intended to protect fish and other aquatic life from the toxic effects of aluminum pollution. Coal industry officials have for years been urging DEP to relax its aluminum limits.

DEP officials said in rulemaking documents that they believe that at typical levels of acidity, there is a direct relationship between hardness and the toxicity of aluminum discharges. When hardness is greater, DEP said, higher levels of aluminum are not as toxic.

According to DEP, the emergency rule is justified to protect "the regulated community" from "unnecessary treatment costs" and to save the agency money by avoiding stream cleanup plans for waterways where pollution cleanups aren't really necessary.

While DEP held a public comment period on the rule Wednesday evening, Secretary of State Natalie Tennant already approved its designation as an emergency rule. The rule still needs approval from the U.S. Environmental Protection Agency before it can take effect.

In a report submitted to DEP on behalf of various citizen groups, University of Maryland aquatic toxicologist Carys Mitchelmore said the DEP rule would allow thirteenfold and forty-sixfold increases in aluminum concentrations, depending on hardness levels.

James VanGundy, an aquatic ecologist from Elkins, said he was not able to find much scientific literature to support DEP's rule. West Virginia's changes appear based, at least in part, VanGundy said, on an industry consultant's report prepared to support similar changes in Colorado.

VanGundy also noted that many West Virginia streams with high levels of minerals are made that way because of historic and existing coal-mining pollution. Now, he said, the DEP is simply citing that pollution as an excuse for allowing high levels of aluminum.

"It's kind of a dream come true for the mining industry," VanGundy said.

Jim Kotcon, spokesman for the state chapter of the Sierra Club, agreed.

"In this case, the solution to pollution is more pollution," Kotcon said. "That is wrong."

Rob Goodwin, a leader of the group Coal River Mountain Watch, noted that various industry lobbyists sat in the back of the room at Wednesday's DEP hearing, but did not sign up to testify. Goodwin challenged one of them, West Virginia Coal Association vice president Jason Bostic, to come to the podium and explain how many jobs the DEP rule change would create or preserve.

Bostic declined to address the hearing, but said in an interview that the impacts of the DEP change may not be as severe as environmental groups made them sound. Some mine operators may end up with less restrictive permit limits, Bostic said, but others may see their limits tightened if hardness in their area is not as great.

Overall, though, Bostic said meeting current aluminum standards is a problem for the industry.

"It's fairly common," he said. "The guys have problems with it, and they have problems with it big time."

Bostic said he could not yet quantify the extent of the problem, though, because mining companies are only now starting to collect new hardness and acidity data they would need to seek permit changes based on the emergency rule.

"We need site-specific information," Bostic said.

In a letter to DEP, environmental groups said it is that lack of site-specific information that undermines any argument in favor of an emergency change in the statewide aluminum limit.

"To the extent that the weakening of the standards provides any benefit to the public, those benefits would be extremely short-lived," said the letter, signed by leaders of eight statewide groups. "The benefits that WVDEP claims will accrue during that period can only be realized after EPA approval and other time-consuming regulatory processes, which will take numerous months."

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


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