WVa House considers weakening stream protections

CHARLESTON, W.Va. (AP) -- The West Virginia House is considering a bill that would allow the state to disregard federal recommendations and set its own standards for how much selenium can be discharged from coal mines.

A public hearing on the bill has been scheduled for Monday afternoon. The House Judiciary Committee is expected to take up the bill soon after the hearing.

The federal Environmental Protection Agency would have to approve any changes to the selenium standards, but if the bill passed and the EPA rejected the revised state standards, it could open the door for legal action.

The proposed bill would allow the West Virginia Department of Environmental Protection to raise the allowable levels of selenium in lakes and streams. It also would order a study to determine acceptable levels of selenium specific to West Virginia. The bill says that the EPA has been considering revising the selenium standards for several years, which raises questions about the usefulness of the current standards.

The EPA said that the agency has been in the process of revising the standards since 2004, but that the current standards are still effective and applicable.

A West Virginia bill passed in 2009 ordered a study of selenium's effect on aquatic life in West Virginia to be completed by 2010. It also ordered coal mines to have selenium monitoring systems in place by July of 2012. That 2010 study concluded that deformities in fish larvae found in West Virginia streams and lakes were associated with high levels of selenium. It found that in some selenium heavy waters, as many as 20 percent of some species of fish had deformities.

Jason Bostic, a spokesman for the West Virginia Coal Association, said that West Virginia's steep mountain streams and above average rainfall allow the state to handle higher levels of selenium. He said that the EPA's allowable levels were far too low and that there was no established evidence of adverse effects from high selenium levels.

Don Garvin of the West Virginia Environmental Council disputed those claims.

"The coal industry has been saying for years, that background levels of West Virginia geology create this problem, but that's stretching the truth," Garvin said. "Background levels have not proven to be impactful on aquatic life. Only the increased levels caused by land disturbance of mountaintop removal mining or airborne pollution from power plants have pushed some West Virginia streams over the tipping point."

Selenium is a naturally occurring element that surface mining can release into waterways. In humans, high-level exposure can damage the kidneys, liver, and central nervous and circulatory systems.

The EPA recommends that selenium levels in streams not exceed a long-term average of 5 micrograms per liter and not exceed 20 micrograms per liter at any one time.

Counter intuitively, the EPA has a much higher tolerable threshold — 50 micrograms per liter — for drinking water than it does for waterways near mines. The EPA did not respond to questions about the disparity between the numbers.

Tom Clarke, a spokesman for the state Department of Environmental Protection, said that the higher threshold for drinking water probably has to do with the fundamental differences between humans and aquatic life.

"People are larger and much more complex organisms than some of the organisms living in our streams and therefore are capable of absorbing and ingesting higher concentrations of selenium without being harmed," Clarke said. "And another thing is how much water you drink a day is different than a tadpole that is constantly exposed over its whole body."

Del. Rupert Phillips, the bill's lead sponsor, said that he didn't want the EPA or any group outside of West Virginia setting selenium levels for the state. He blamed the selenium regulations for the recent bankruptcy of Patriot Coal, which has put the pensions and health care benefits of 20,000 retired miners and their families at risk.

"You've got two different worlds, bugs and people, so you know people first," Phillips said. "I'll fight for the coal industry until I'm dead."