The House Energy Committee had a vigorous discussion and then advanced a bill that would define standards for community programs to monitor and analyze information about air quality.
Aspects of HB 5018 that drew criticism would place limits on how that air quality information is used.
Although the bill says the secretary of West Virginia’s environmental agency may consider air monitoring data gathered under specific standards to determine whether further investigation is necessary to protect communities, the legislation goes on to say the secretary may not use only the original community data to issue a fine or notice of violation.
And, under the bill, community air monitoring data may not be used to bring legal actions, including a lawsuit, against anyone including the owner or operator of whatever could be reducing the air quality.
During about an hour of discussion in Tuesday afternoon’s Energy Committee meeting, Delegate Bob Fehrenbacher asked several questions about how the bill would work. In an interview after that, he described why he is an advocate for the legislation. He emphasized aspects of the legislation that set standards for community air monitoring installation, operation and maintenance.
“To me, the primary substance of the bill was that community air monitoring installations ought to be using standard protocols — so test methods, things like calibration, how you gather a sample, if you buy equipment to utilize the manufacturers specifications and operating instructions and things like that.”
So, Fehrenbacher said the sample collection and analytical requirements were the primary attributes of the bill “not to stop community air monitoring but to have standards used for those samples.”
The House committee room was filled with onlookers representing organizations like the West Virginia Chamber of Commerce, the West Virginia Coal Association and the West Virginia Manufacturers Association.
Bill Bissett, president of the Manufacturers Association, said the bill “clarifies the work of community monitoring efforts and how data and information from these efforts may be used.
“We are in no way against community monitoring, but also do not believe that environmental activist groups should become regulatory agencies.”
Delegate Kayla Young, D-Kanawha, said the aspects of the bill that establish standards for community monitoring are reasonable, but she questioned sections of the legislation that would limit how community air monitoring data could or could not be used in court.
“I think more community air monitoring is a good thing, not a bad thing, and we shouldn’t be hurting our citizens and transparency,” Young said during the meeting.
Delegate Evan Hansen, D-Monongalia, also spoke against the bill, describing the many West Virginians who suffer from ailments like heart disease or asthma that can be compounded by poor air quality.
Hansen told WAJR Radio that the bill’s limitations on how community air monitoring data may be used are unnecessary.
“The Department of Environmental Protection will not use unreliable data in their regulatory programs, and if you try to bring unreliable data into court, it’s going to get thrown out, so there’s no problem to solve here,” Hansen said.
Dave McMahon, a lawyer who often deals with oil and gas issues, asked how the limitations on how community air monitoring data may be used would work in practice.
“My question about the bill is, if community monitoring was done and showed a problem — under the bill, the monitor could report to DEP, and then DEP could go out and what if by the time DEP got there the valve had been turned down that was causing the problem?” McMahon said in an interview after the meeting.
“So the DEP leaves, the company turns the valve back up, the problem is caused again. Community monitoring finds a problem again. Under this bill, if I wanted to go to court to say to the company ‘quit opening that valve further than you should,’ my evidence would be inadmissible. That’s just not right.”
