Senate committee approves DEP rule bundle including change to selenium fish‑tissue standard; water‑column number left unchanged

The Senate Environment Committee on Monday agreed to a committee substitute for Senate Bill 256, a Department of Environmental Protection (DEP) rulemaking bundle that revises air and hazardous‑waste rules, creates a carbon dioxide sequestration fee schedule and recalculates the state’s whole‑body fish tissue selenium standard.

The move came after counsel and DEP witnesses described technical updates the agency says are needed to retain federal primacy and align state rules with updated federal reference dates. The committee adopted the substitute by voice vote and the vice chair moved that it be reported to the full Senate with a recommendation that it pass.

Why it matters: One of the most contested elements is a change to the whole‑body fish tissue selenium standard. DEP witness Mindy Neal, assistant director of the Division of Water and Waste Management, said the prior criteria included white sturgeon — a species not present in most West Virginia waters — and that EPA’s deletion procedure allows the state to remove that species from the calculation. Neal said removing white sturgeon yields a recalculation “that takes the number from, 8.5 to 9.5” for non‑sturgeon waters. “So this is a criteria change that provides you with the appropriate number for the fish that are living in the waters,” Neal said.

DEP emphasized that implementation relies on a hierarchy of protections: egg‑ovary (the most protective), then whole‑body fish tissue, then water‑column values. Several senators asked whether raising the whole‑body number could weaken permit limits. Neal replied that permits based on whole‑body tissue could become less stringent where whole‑body is the controlling metric, while water‑column–based permits remain tied to the water‑column value (currently 5 parts per billion).

Public and stakeholder views split. Scott Mandarola, technical advisor for the West Virginia Rivers Coalition and a former DEP water‑quality official, warned the committee that leaving the water‑column number at 5 ppb while raising whole‑body values could leave a protection gap in situations where regulators must use the water‑column number (for example, new discharges that have not reached biological equilibrium). “What you’ve got is potentially a water column number that’s not protective of the egg ovary even though the fish tissue number may be,” Mandarola said, noting EPA’s recommended water‑column values for sturgeon waters are 3.1 ppb (flowing) and 1.5 ppb (lentic).

Representing the coal industry, Jason Bostick, vice president of the West Virginia Coal Association, told the committee the 9.5 whole‑body number reflects years of work with DEP and industry and that recalculating the water‑column number could produce a higher (less stringent) value once species not present in West Virginia are removed. “The 9.5 number that DEP has brought to you, that’s the result of about 13 years worth of work between the coal industry and DEP,” Bostick said, adding that selenium is difficult to treat and that industry uses encapsulation and other plans to limit discharges.

Other rule changes in the package include updates (by reference) to federal air and hazardous‑waste regulations (incorporation dates cited as 06/01/2025 for several air rules and 02/10/2025 for hazardous waste), revisions to interstate trading programs for NOx/SO2, and a new CO2 injection/fees rule to support permitting and long‑term well closure and management.

Formal actions and next steps: After a period of questions and testimony, the committee agreed to the committee substitute and voted to report it to the full Senate with a recommendation that it pass. The meeting adjourned after the report motion carried.

Quotes in context: DEP’s Mindy Neal said removing white sturgeon from the sensitivity calculation led to the recalculated whole‑body level: “When you delete the most sensitive species, in this case, the white sturgeon, another species comes up … and so the next most sensitive species … takes the number from, 8.5 to 9.5.” Rivers Coalition technical advisor Scott Mandarola cautioned that in some permitting situations the unchanged water‑column number “may not be protective of the egg ovary even though the fish tissue number may be.” Jason Bostick of the West Virginia Coal Association said the adjusted whole‑body value reflects prolonged state‑industry work and framed the change as a way to avoid unnecessary stream modification.

The committee’s vote was by voice; the substitute was adopted and the vice chair moved that the substitute be reported to the full Senate with a recommendation to pass. Committee staff will carry that report to the Senate for further consideration.