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Controversial selenium law going to full House floor

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A law that would swap selenium studies for selenium enforcement is one step closer to being written into West Virginia Code.

House Bill 2579 passed the House Judiciary Committee on Monday, so it now advances to the full House of Delegates. The bill was referred to the general floor with recommendation for passage by the committee.

The bill seeks to remove enforcement action when companies exceed certain levels of selenium, instead choosing to trigger a study of the effects on that water body. The Environmental Protection Agency has long tried to revise those standards, but has failed to do so.

The standard – which is five parts per billion -- is currently loosely enforced with long and extended compliance timetables. The chemical, which has been linked to a variety of health concerns when levels are high enough, is extremely difficult and expensive to remove from water.

Selenium is a naturally occurring material that is washed from the soil when the ground is disturbed. Coal mining operations are one of the major sources of additional selenium in West Virginia's water.

Delegate Rupert Phillips, D-Logan, and a lead sponsor of the bill, was the first to speak in support of the bill. He said the bill goes far in supporting the ability of the coal industry to do business in the state.

"I'm definitely in favor of this bill," Phillips said. "This is a very important issue for the coal industry and the state."

The bill would keep the numerical standard in place, but require data collection and aquatic life studies as opposed to fines or violations being assigned to the company.

Phillips added that a lot of budget problems in the state are tied to less coal production. Less coal production, he said, could be remedied by tearing down industry obstacles such as current selenium standards.

Dianne Bady with the Ohio Valley Environmental Coalition warned lawmakers against allowing the bill, which she said falsely claims to protect state waters.

"The real purpose of this bill is to allow mountaintop removal companies to pollute West Virginia streams with selenium that known by the best scientific at this time, to cause serious harm to fish and aquatic wildlife," Bady said. "… The state Legislature is poised to do all in their power to see that mountaintop removal is allowed to illegally pollute the waters of this state. How you vote on this will demonstrate to the public what you really stand for."

Delegate Justin Marcum, D-Mingo, another supporter of the bill, said that "selenium is a vital nutrient essential to all living things," and that "no impacts have ever been observed in West Virginia water." He said the current standard is problematic to coal companies.

"We've done that responsibility, worked with the DEP, miners, the industry and everyone involved," Marcum said. "That's the true stakeholders, not a bunch of outsiders coming in and telling us how to manage our coal."

Rob Goodwin from Coal River Mountain Watch said the entire matter was not over water protection, as the bill purports.

"It's about politics," Goodwin said.

The bill has the maximum number of House sponsors.

Goodwin pointed out during the hearing that any standard, particularly one that would eliminate violations of current selenium standards, would require approval by the Environmental Protection Agency. Goodwin said he suggests that the legislative body not move forward on such a standard without consulting the EPA to ensure they weren't "wasting time."

Once the bill moved from a public hearing into the judiciary's meeting room, Delegate Barbara Fleischauer, D-Monongalia, wanted to know how the DEP would choose to interpret the bill.

DEP Secretary Randy Huffman told her that every permitee would be applicable to the selenium threshold. Whether or not the law would erase violations and make the new selenium guidelines purely thresholds for study would be determined by the EPA when it approved or disapproved the rule.

Regardless, Huffman said, passage of the law would begin a process of studying area-specific selenium effects for the creation of a state-specific selenium standard. Huffman said he had not yet begun the process of contacting the EPA, something that would have to wait until the proposed law has been amended and passed by the legislature.

Huffman said that current standards are stringent and the state agency has given wide-berth to those who are not in compliance. That, he said, is because the selenium cleanup is difficult, particularly where there has already been contamination.

Patriot Coal was forced by a settlement to clean up selenium discharges at two of its mines at a cost of around $95 million. Alpha was required by another legal settlement to pay more than $50 million.

"It's a lot easier to get environmental compliance when there is a viable operation in place than when there is not," Huffman said. "It's pretty serious it's become a hot button issue for a lot of folks. The impacts on aquatic life and human health, based on the levels we are measuring are not, we're not seeing them."

As the bill is currently written, it does not set a deadline for drafting state standards based on the data collected from those that surpass the selenium threshold. 

The study, would however, attempt to address the numerous problems with measuring selenium. Supporters of the bill cited a number of challenges – multiple types of selenium, exposure differences, build-up of the material and differing effects in different bodies of water.