Will facts matter in Legislature’s selenium debate?

March 4, 2013 by Ken Ward Jr.

It’s always interesting to watch as the same old issues keep coming back before the West Virginia Legislature — especially when it’s the same old complaints from the state’s coal industry and the same old response from lawmakers.

Take HB 2579 concerning water pollution limits for toxic selenium, which was the focus of a recent op-ed in the Gazette, the subject of an Associated Press article, and this afternoon will be at the center of a House committee public hearing. Now, if you’re not really following very closely the issues surrounding strip-mining and selenium pollution, this could get kind of confusing. Take a look, for example, at the AP story.

First, it tells us:

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.

But then, in the  very next paragraph, the story says:

Jason Bostic, a spokesman for the West Virginia Coal Association, said … that there was no established evidence of adverse effects from high selenium levels.

Which  of those statements is true?

Well, let’s see what current West Virginia law says. Check out W.Va. Code 22-11-6 (3), which reads:

The Legislature finds that there are concerns within West Virginia regarding the applicability of the research underlying the federal selenium criteria to a state such as West Virginia which has high precipitation rates and free-flowing streams and that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia and, further, that considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium and to better understand the chemical reactions related to selenium mobilization in water. For existing NPDES permits, the department may extend the time period for achieving water quality-based effluent limits for selenium discharges into waters supporting aquatic life uses to July 1, 2012, upon compliance with all federally required public notice requirements for such modifications, upon a finding that the permittee cannot comply with its existing compliance schedule and that an extension is not in violation of any state or federal laws, rules or regulations. The West Virginia Department of Environmental Protection is hereby directed to undertake a comprehensive study relating to selenium and prepare a report detailing such findings and submitting the report to the Joint Committee on Government and Finance no later than January 1, 2010. In conducting such study, the West Virginia Department of Environmental Protection shall consult with, among others, West Virginia University and the West Virginia Water Research Institute.

Now, part of that language — the part that says the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia — is repeated in this year’s legislation. It was originally added to state law in 2009, when lawmakers were attempting to give coal companies more time to comply with the existing selenium standard. At the time, even the state Department of Environmental Protection opposed the legislation. Lawmakers approved it anyway.

But what’s interesting here is that lawmakers are repeating this line that says the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia. Why? if you read on in the 2009 legislation, the idea was supposedly that lawmakers were skeptical that selenium pollution from coal mines was a problem, and wanted the WVDEP to study the matter. Agency science would inform public policy, and lawmakers could make a better decision about an appropriate water quality standard for selenium.

Or at least that’s what SB 461 said:

Considerable research is required to determine if selenium is having an impact on West Virginia streams, to validate or determine the proper testing methods for selenium and to better understand the chemical reactions related to selenium mobilization in water.

So here we are in March 2013, and lawmakers are revisiting the selenium issue. What did they find out from this “considerable research” they wanted to WVDEP to perform? Well, WVDEP officials reported in this study (dated January 2010) about deformities in fish downstream of mountaintop removal operations that agency official said are consistent with the kinds of problems caused by excessive selenium exposure.

If the WVDEP study isn’t enough, lawmakers could also review a study published not long ago in the Proceedings of the National Academy of Sciences, which found high levels of selenium and deformed fish downstream from one of West Virginia’s largest mountaintop removal operations.

But really, the statement that the alleged environmental impacts that were documented in applicable federal research have not been observed in West Virginia was no more true when lawmakers added it to the West Virginia Code than it is now. After federal government investigators found evidence of selenium violations downstream from mountaintop removal as part of a major study more than a decade ago, and the U.S. Fish and Wildlife Service urged more research on the matter, one of the top selenium experts in the country found deformed fish downstream from mining operations in the Mud River watershed, and warned that area was on the brink of a major toxic event.

So doesn’t it tell us something important when lawmakers, having asked for more research, are now proposing a bill that again falsely states that no impacts from selenium have been observed in West Virginia?  Will  the facts and scientific evidence matter this time around? Well, you decide. Here’s what the bill’s main sponsor, Delegate Rupert Phillips, D-Logan, told the AP:

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

5 Responses to “Will facts matter in Legislature’s selenium debate?”

  1. Ted Boettner says:

    Sounds a lot like epistemic cloture. Interesting study flagged by Wonkblog on the topic: http://www.washingtonpost.com/blogs/wonkblog/wp/2013/03/04/one-study-explains-why-its-tough-to-pass-liberal-laws/

  2. Dave says:

    Our lawmakers obviously believe that by simply denying scientific research, they can get the public to believe them. Please note the article in metro news outdoors about river otter populations. The DNR acknowledges that river otters cannot live in our coal mine drainage areas because there is not enough aquatic life in the streams.

  3. Dustin White says:

    I was there today and I have to say there were very few if any facts from supporters of this bill. Our state legislatures continue to ignore the citizens to appease the coal industry. Delegate Kelli Sobonya even spoke condescendingly to me demanding I provide her with “proof” of the things I disagreed with. When I offered to introduce someone who was much better with the numbers than I, she refused, continuing to demand I give her “proof.” I am just a citizen of WV from Boone Co. I am the people they are suppose to be working for. I dont deal in statistics. I deal in reality, and that reality is too many people are sick in Southern WV and we cannot afford to allow any more pollutants in waterways. Its like sitting in a room with the people who are suppose to be representing you saying your life and the life of others are worth less than industry profit. If anyone wants proof just spend some time living at the foot of a mountaintop removal site and drink the water.

  4. Donna Shook says:

    For years WV has been abused and the politicians sitting in lobbyist pockets and those who collect huge salaries and perks have not listened and are still deaf to the damage and irrepairable destruction they have and continue to do to one of the most beautiful and blessed states…rape/ravage at any price and let the citizens just live with it. i often wondered why a rockefeller would move to WV…why Byrd kept getting elected till he could barely sit up in his senate seat…total destruction and if you want to see some stories just turn to free speech tv and look up the coal mining companies on the internet….money talks, no matter how sick the residents get or how many die. the government should take a bow. they have chemical trails in different state and that in itself is government initiated and in conjuncture w/big corporations (just to see what happens to the atmosphere) and then mtm and strip mining, dumping chemicals in what used to be clean mountain water and now the air is completely polluted. they will finger point and treat West Virginias as though they are dumb but these politicians who are supposed to be public servants putting the needs and care of the residents first will pay the real price…accountability to a God who will want answers. Shame on everyone who has ever raped the state and abused each citizen by making health issues a daily and terminal condition.

  5. Sam says:

    The selenium debate should be based on sound science, period. If the standard is more stringent than it should be, it is only right to adjust it. Regulating something for the sake of regulating it, or because a certain group of people don’t like a certain type of mining, and see it as a way to regulate them out of business, is just wrong (yes, enviros do see it that way). On the other hand, if science proves that the standard is appropriate, or needs made more stringent, then that it should be kept the same (or lowered). The standard should be based on protecting our streams and/or human health, and not on an agenda. The decision should not be made simply based on political views, business views, environmentalist views, etc., but on sound science alone. I say let the science set the standard, and live with it!

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