Proposed Emergency Rule Weakens Aluminum Water Quality Standard

The State Journal
4 March 2013
By Pam Kasey

A revision that would weaken the state water quality standards for aluminum and beryllium has been proposed on an emergency basis by the Department of Environmental Protection and is due for decision.

Secretary of State Natalie Tennant has 42 days from the day of filing, or until March 13, to decide if there truly is an emergency.

Agencies propose emergency rules when the legislative rulemaking process would take too long to avoid negative consequences.

DEP's justification for regarding this as an emergency is that, without it, the coal and quarry industries will incur unnecessary water treatment costs and the agency will devote resources that could be put to better use.

The proposal would change dissolved aluminum criteria and the human health beryllium criterion in the state water quality standards.

For dissolved aluminum, the filing proposes in place of existing numeric criteria a hardness-based calculation to determine limits.

Acute and chronic exposure to aluminum at higher concentrations in the hundreds of micrograms/liter has been shown to stunt and kill aquatic organisms including algae and fish.

But studies also show the toxicity of dissolved aluminum is directly related to hardness — essentially, mineral content — according to the agency's filing.

The proposal would replace the numeric limits — acute and chronic standards of 750 micrograms/liter in warm water, and an acute standard of 750 micrograms/liter and a chronic standard of 87 micrograms/liter for trout waters — with limits based on site-specific calculations.

The proposed equation mainly weakens the standard.

At the very lowest levels of hardness, it results in both more stringent acute and chronic standards.

But at hardnesses above about 60 milligrams/liter — the range a random sampling of West Virginia streams falls into on DEP's website — the equation results in a much more lenient standard.

The chronic standard would rise to about 2,500 micrograms/liter aluminum at a hardness of 150 milligrams per liter and to over 4,000 when hardness is above 220. The pattern is the same for the acute standards.

A similar approach has been used to set standards in Colorado and New Mexico and was approved by those states' regional EPA offices and by EPA headquarters, according to the filing.

It's unclear whether science that applies to western stream chemistry necessarily applies to eastern stream chemistry. EPA Region 3, which has to approve any change to the state's water quality standard, could not be reached to comment on that.

Dan Ramsey, a former employee of the Division of Natural Resources and the U.S. Fish and Wildlife Service, followed the regulatory process some years ago when the water quality standard was changed from one that applied to total aluminum to one that applies only to dissolved aluminum, and he has concerns.

"Aluminum stream chemistry is complex and toxicity of the metal is dependent on factors other than hardness, especially in headwaters," Ramsey said.

"Early aquatic life forms are more susceptible to aluminum than mature forms, and changes in water chemistry through time, organic matter, and water quality at mixing zones are also factors. There are also different forms of Al that must be considered, and toxicity of some forms is not well understood," he said. "I don't believe there is evidence to support the present effort to change the aluminum standard, and certainly there is no ‘emergency' to address."

In anticipation of the rule revision moving forward, DEP has asked coal and quarry operators holding discharge permits with aluminum effluent limits or monitoring requirements to have water samples analyzed for hardness twice each month.

As it affects beryllium, the proposed emergency rule filing said the human health criterion is being updated to reflect Environmental Protection Agency goals.  The proposal would amend the beryllium standard from 0.0077 micrograms/liter to 4 micrograms/liter.

"By amending both the dissolved aluminum and the beryllium standards, West Virginia can avoid substantial harm to both the regulated community and the agency while maintaining the level of protection necessary for its aquatic life and human health," the filing reads.

If approved by Tennant and then by EPA Region 3, the change to the water quality standards would be in effect, according to the practice for emergency rules, for up to 15 months.

For a permanent revision of the standards, the changes would be included in the 2014 Triennial Review of water quality standards for legislative and EPA approval.

A public hearing on the emergency rule is scheduled for 6 p.m. on March 27 at DEP's offices in Charleston.

Written comments may be mailed until that time to Kevin Coyne, Water Quality Standards Program, West Virginia Department of Environmental Protection, 601 57th Street SE, Charleston WV 25304.