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Ohio River Compact Considers Vote to Eliminate its Pollution Standards

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The Ohio River is a source of drinking water for more than 5 million people. Photo: Kara Lofton/West Virginia Public Broadcasting

A multi-state commission charged with ensuring water quality in the Ohio River will consider whether to eliminate its pollution control standards at its meeting on February 14. Thousands of people have expressed opposition during a public comment period, while others argue that the regulations are redundant and have no teeth.

The current debate started brewing five years ago, when Dayton Power and Light along with a handful of energy companies challenged the state of Ohio. They said state permits couldn’t use a standard set by the Ohio River Valley Sanitation Commission, known as ORSANCO, that limits the temperature of the companies’ waste discharges into the Ohio River. The companies pointed out that the state had never officially adopted the ORSANCO standards in Ohio law. And the companies won. 

“It was a shock,” said ORSANCO commissioner Tom FitzGerald. He and others hadn’t realized that some states weren’t adopting the agreed-upon standards.

What is ORSANCO?

Image courtesy of ORSANCO.

ORSANCO is a compact between the eight Ohio River states that dates back to 1948, before the federal Clean Water Act and before states had their own water quality standards.

Each of the eight states has two or three commissioners. Fitzgerald, who is an environmental lobbyist in Kentucky, is considered a federal commissioner on the ORSANCO board. 

“I’m one of three federal commissioners that were appointed by President Obama,” he says. “I guess I’m a holdover.” 

Through the decades, the water quality experts at ORSANCO have created rules and standards for all kinds of discharges into the river, like limits on sewage and pollutants such as benzene and mercury to protect aquatic life and human health. 

Some States Adopted ORSANCO Standards, Others Didn’t

The 2014 Dayton Power and Light case brought to light an issue of disparity among states in the compact. Some, like Pennsylvania and Indiana, have adopted the ORSANCO standards, while others, like Ohio and Illinois, have not.  

“Your technical people and your commissioners have been approving these standards for decades. Are you now telling me they’re suitable and appropriate for the river, but you’re not using them?” FitzGerald asks.

Fitzgerald says this disparity impacts water quality and creates an unfair playing field for industries in the different river states. For instance, states that have adopted ORSANCO regulations, like Pennsylvania, limit some mercury discharges into the Ohio River, while Illinois does not.

Toby Frevert, ORSANCO commissioner from Illinois, chairs its Pollution Control Standards Committee. He spent his career as manager of water pollution control at the Illinois EPA, and explains that his state has a Pollution Control Board that decides state regulations. ORSANCO has no legal authority.  

“They don’t have the luxury of delegating that off to an interstate commission or anybody else,” Frevert says of the Illinois Pollution Control Board. “They have to adopt the regulations that the administrative agency is bound to operate by.”

States are required to work with the US EPA to meet federal water quality standards, so Frevert doesn’t think ORSANCO is needed as a pollution regulator any longer. 

“In my opinion, ORSANCO’s a great organization – I love it,” he says. “But it’s really not designed or staffed to handle regulations in the modern era the way US EPA and the state environmental agencies are.” 

“Not the Time to Signal a Retreat”

But one analysis by ORSANCO found 188 instances where it regulates pollution, and the U.S. EPA does not, and others where federal regulations are less stringent. 

Tom FitzGerald, the federal ORSANCO commissioner in Kentucky, looks at the current rollback of federal environmental regulations. 

“Even the Clean Water Act itself is in turmoil,” he says. 

Fitzgerald wants ORSANCO protections to stay in place. 

“This is not the time to signal a retreat from the maintenance of standards intended to protect the health of the public and the use of river,” he says.

Since last year, ORSANCO has been considering eliminating its pollution control standards. The agency received well over 5000 public comments on its proposal, most of them opposed to eliminating the standards. 

The commissioners are scheduled to vote at their February 14 meeting, but many expect it will be delayed as they consider revisions.

This story was originally published by The Allegheny Front. The Allegheny Front is produced in Pittsburgh and reports on the environment. More at alleghenyfront.org.

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Watershed Moment: “Ephemeral” Streams Debate Could Reshape Ohio Valley Waterways

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Photo: Liam Niemeyer, Ohio Valley ReSource

This article was originally published by Ohio Valley ReSource.

West Liberty University Professor Zachary Loughman has dedicated his professional life to crustaceans – specifically freshwater crayfish. He dips his hand into one of the water tanks at his laboratory near Wheeling, West Virginia, to pick up a teal crayfish the size of a dollar bill.

“See the little guy dropping down? We caught mom and she had 300 babies. So we just let them grow,” Loughman said. “We’ve had our feet – my lab – in over 3,000 rivers in the past 10 years.”

His team has been all over Appalachia and the Ohio Valley searching streams, wetlands and marshes to document thousands of crayfish, some of them undiscovered species. His students even named one after him.

Zach Loughman poses with a crayfish at his laboratory at West Liberty University, West Virginia. Photo: Glynis Board, West Virginia Public Broadcasting

“So when we’re out looking for our crawfish, we’re flipping rocks and letting our ‘inner 10-year-old’ fly, but we’re doing it in a scientific way,” Loughman said. “I got to go to all the places I love to be, because I like water, so.”

Yet with each new species Loughman discovers, he worries that the habitats of these unique animals may be at risk in the future. Some crayfish he studies live in wetlands and streams that are considered “ephemeral,” which means they only occasionally have water during events like heavy rainfall.

The U.S. Environmental Protection Agency will decide over the next six months whether to follow through with a Trump administration executive order that would dramatically change federal protections for such streams and wetlands.

The proposed revision would roll back an expanded Clean Water Act rule from the Obama administration, that included protections for ephemeral streams and wetlands in something called the “Waters of the United States,” or WOTUS.

In the Trump administration’s revision, ephemeral streams and wetlands would not be protected, and that concerns Loughman.

“I don’t know a single aquatic conservationist or biologist – and I know a lot of those kind of people – who thinks ‘yeah, this rule is great.’ I don’t know anybody who thinks this rule is good, or even OK,” Loughman said. “So when you have an entire community of people whose job it is  to generate the science that this rule is based off of, that are all unified and are emphatically saying, ‘this is a disaster,’ then that is a tremendous amount of evidence that this is a disaster.”

Members of the EPA Science Advisory Board in early June questioned the science backing the Trump administration’s revised WOTUS rule.

Click to explore your area’s streams with this interactive map from Trout Unlimited. The group advocates for the Obama-era version of the WOTUS rule.

Scientists and biologists, including Loughman, worry that if ephemeral streams and wetlands don’t have federal protection, it could lead to pollution of watersheds, a loss of water quality and aquatic wildlife, and the potential for more dangerous flash flooding as climate change intensifies.

Yet some Ohio Valley farmers, coal companies and land developers worry that expanded federal protections will bring burdensome federal regulation.

Connected Watershed

The EPA received over 600,000 public comments this spring on the Trump administration’s revised WOTUS definition, including from the Ohio Corn and Wheat Growers Association, the Kentucky Coal Association and the Kentucky Waterways Alliance.

Some comments criticizing the proposed rule change cited the work of Ohio State University School of Environment and Natural Resources Professor Mazeika Sullivan, who has studied wetlands throughout Ohio and contributed to a study on the ecological role of the nation’s ephemeral waterways.

“If this were to go into law, we’d lose protections for millions of acres of wetlands. Millions of miles of streams,” Sullivan said. “I think folks don’t necessarily understand just the services they provide.”

He said one benefit ephemeral streams offer in the Ohio Valley is to buffer against flash flooding, holding back heavy precipitation. If more ephemeral streams are eliminated because of a lack of federal protection, then the possibility of flash floods increases.

Sullivan said the Ohio Valley could see more streams become ephemeral in the future, as climate change is predicted to increase drought conditions.

“An intermittent stream today could become an ephemeral stream in the future, and then it would fall out of protection,” Sullivan said. “And we’re seeing that, at least anecdotally, in areas of Ohio.”

Sullivan also helped review a 2015 EPA report that detailed how ephemeral streams and wetlands, while not having regular flowing water, are still connected to and contribute to the quality of larger downstream waters. Essentially, water that flows from ephemeral bodies eventually ends up in streams and rivers.

“Once you degrade these systems, you can’t just turn them around and snap your fingers and say, ‘OK, we’re going to restore them,’” Sullivan said. “Once we go down this path, it’s a very slippery, slippery slope.”

The Obama administration cited that report when expanding the definition of WOTUS protections to include ephemeral streams and wetlands. But land developers, the coal industry and agriculture interests pushed back, arguing that vague language in the rule could put excessive regulation on businesses and farms.

Regulation Reservations

Kentucky soybean farmer Larry Thomas is one of those farmers against the Obama-era definition of WOTUS and in favor of the Trump administration’s revision.

Sporting a white beard, he stands among tall weeds on his farm near Elizabethtown, Kentucky, to point over at a nearby creek bed.

Soybean farmer Larry Thomas with an old tractor on his farm in Hardin County, Kentucky. Photo: Liam Niemeyer, Ohio Valley ReSource

“Talking about ephemeral streams, this stream, and I don’t know where it stops – somewhere on the other side of Bacon Creek Road – will not run year-round,” Thomas said.

Thomas said he was worried the Obama-era definition of WOTUS was too vague, and that federal regulators could extend the language to require regulation of things like water retention ponds on his farm.

“They want to grab another tributary and bring it into that,” Thomas said. “And we have to say somewhere, where does this stop? Otherwise, we wind up in people’s yards.”

He believes the Trump administration revision of WOTUS provides more clarity for farmers on what water bodies are regulated.

Thomas mentioned specifically, under the revision, that it’s easier to determine whether wetlands are protected by having a surface water connection to other protected streams and rivers. Thomas also said regulation of ephemeral streams and wetlands should be left to the states.

But other area farmers believe such concerns are misplaced and that they, too, benefit from protected streams.

Laura DeYoung raises sheep in northwest Ohio and is a member of the Ohio Farm Bureau and the Ohio Ecological Food and Farming Association. She supports the Obama-era rule because of the expanded protections it provides for wetlands, and she points out that the 2015 rule explicitly exempted agriculture from any new regulation. She trusts the EPA in its exemption of agriculture.

“What happens upstream impacts what happens downstream,” DeYoung said. “I just think there are better battles to fight, and this isn’t a battle [farmers] need to fight.”

DeYoung said she hasn’t noticed a difference in how her farm has been regulated when the Obama-era rule went into effect in Ohio, the only state in the Ohio Valley where the rule is currently enacted. The Southern District Court of Ohio in March refused to issue an injunction to stop the implementation of the rule in the state.

Farmer Larry Thomas fears this retention pond could be regulated. Photo: Liam Niemeyer, Ohio Valley ReSource

Legal Battles

The Obama-era rule is enacted in a total of 22 states, but ongoing litigation stopped its implementation in other states, including Kentucky and West Virginia.

West Virginia University Agriculture Law Professor Jesse Richardson believes even more litigation is likely if the Trump revision of WOTUS is finalized.

“I think as soon as the Trump administration finalizes their rule, which I anticipate that they will, I think there will be dozens of lawsuits filed the very next day,” Richardson said. “It’s just going to wind its way through the courts for five years, 10 years – who knows?”

Richardson said that Congress could step in to define WOTUS and help end the court battles, but he didn’t think that was likely. A Senate hearing on WOTUS in June had senators expressing interest to redefine the Clean Water Act, but lawmakers offered no definitive steps forward.

An EPA spokesperson said the agency expects to take a final action on the Trump administration’s revised definition by December.

Glynis Board of ReSource partner station West Virginia Public Broadcasting contributed to this story.

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Fish Species in Ohio River Has Substantially Increased since ’60s, Study Finds

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The variety of fish species in the Ohio River has substantially increased since the 1960s, according to a new study.

A team of researchers from Ball State University and Virginia Tech examined almost 60 years of fish surveys collected by the Ohio River Valley Water Sanitation Commission, or ORSANCO.

The analysis, published last week in the journal PLOS ONE, examined ORSANCO-collected data from 1957-2014, as well as information on how land use near the river has changed over that time. Researchers found the number of species in the river varied from 31 to 90 each year, and increased over the decades studied.

Following the passage of the Clean Water Act in the 1970s, the data showed more fish species variety in the Ohio River, said Ball State Biology Professor Mark Pyron, lead author of the study.

“I think that the overall positive attribute now is we know that the Clean Water Act had a really positive impact on the fishes in the river,” he said. “Maintaining water pollution standards, and controlling input of toxins to the river, is going to have a huge impact in the future on controlling or maintaining water quality and quality of life.”

He added this trend is observed at most rivers in the U.S. where long-term datasets on fish species or river quality exist.

While generally the variety of fish species in the Ohio River trended upward over time, Pyron also said the data showed the trend was not observed across all speices. For example, benthic intervertabors or insect-eating fish in the Wabash River, which runs through Ohio and Indiana, have increased according to similar data Pyron analyzed.

They was not observed in the Ohio, he said. In fact, they slightly declined.

The study also examined land use changes surrounding the Ohio River over the last 60 years. In general, the researchers found agriculture near the river has decreased, forested land increased and some dams have been modified — changes that have likely positively impacted fishes in the river, Pyron said.

He noted the study used high-level data and so the findings were largely correlations. Pyron said more research is needed to tease out what is impacting specific species across the river’s 981 mile stretch. Next, he hopes to examine changes upstream and downstream and changes in body size of fish species.

Jason DeBoer, an ecologist with the Illinois Natural History Survey who studies large river fisheries, said in an email that the findings were interesting and largely mirrored those from other rivers in the Midwest, although few have seen a decrease in agriculture near their banks like the Ohio River has.

However, DeBoer, who was not involved in the study, said the significance of the findings — a threefold increase in fish species as water pollution decreased and water quality improved — should not be understated.

“Importantly, the ‘splash’ of findings like these sends ripples far beyond river scientists in the Ohio River basin,” he said. He noted they should be important to politicians and state agencies that pass and implement water quality laws as well as to industries and residents that share resources from the Ohio River.

“These findings are important to other river scientists around the country or the globe, who may not have a 60-year data set like this, but who are inspired to form partnerships with sanitary districts or other water/sanitation management agencies that might,” he added.

Pyron said having access to ORSANCO’s long-term monitoring data was crucial to completing this first analysis.

“If you don’t have long-term databases like this, where people have collected the same data over a long period of time from the same location, you can’t ask questions about whether things are changing or not. You can’t ask whether there’s some impact of [the] activities that we’ve done,” he said. “The only way to ask those questions is to have those long term datasets. So, we need to maintain ORSANCO for example collecting these data into the future so we know what’s going on with our ecosystems.”

This article was originally published by West Virginia Public Broadcasting.

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EPA To Limit PFAS Chemical Contaminants Found In Some Ohio Valley Water Systems

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Residents in Vienna, West Virginia, pick up bottled drinking water. Photo: Dave Mistich, WVPB

The U.S. Environmental Protection Agency said Thursday it will move forward with a series of actions to regulate toxic fluorinated chemicals, including proposing drinking water limits by the end of this year. But environment and public health advocates say that timeline is unacceptably slow given the health risks and extent of contamination.

In its long-awaited “PFAS Action Plan,” EPA laid out a series of actions to address the widespread contamination of fluorinated PFAS chemicals.

Those chemicals include PFOA, or C8, which has been detected in several water systems in the Ohio Valley. The chemicals were used in a variety of products, including non-stick cookware, stain resistant clothing, and flame retardants.

Some municipalities in Ohio and West Virginia have been dealing with C-8 contamination for decades, and a court-ordered health monitoring program in the Ohio Valley linked exposure to a variety of health risks.

Graphic: Alexandra Kanik, Ohio Valley ReSource

“This action plan represents a pivotal moment in the history of the agency and a pivotal moment for public health environmental protection,” said EPA Acting Administrator Andrew Wheeler, speaking at a press conference in Philadelphia. “This is the most comprehensive cross-agency action plan for a chemical of concern ever undertaken by the agency.”

Among the actions outlined in the plan, EPA said it will:

  • “Propose a regulatory determination,” or take the next step to determine a Maximum Contaminant Level, or MCL, for PFOA and PFOS.
  • Continue enforcement actions (EPA has already done eight).
  • Clarify cleanup strategies for PFAS contamination and soon release interim groundwater cleanup recommendations for contaminated sites.
  • Expand research into the human health and ecological effects of exposure, how PFAS chemicals spread and how best to remove them from the environment.
  • Continue the process to of adding PFAS under the Superfund law.
  • Consider placing PFAS chemicals in the Toxics Release Inventory, a publicly available database containing information on chemical releases and other waste management activities.
  • Develop a plan to better communicate the risk to the public of exposure to these chemicals.

EPA’s plan was met with enthusiasm by some groups dealing with PFAS contamination. The National Ground Water Association, an Ohio-based trade group, said it was pleased with the agency’s actions to list PFAS chemicals as hazardous substances under the federal Superfund law. Once listed under the Comprehensive Environmental Response, Compensation and Liability Act, states affected by the chemical contamination will be able to receive federal help holding polluters accountable.

The group also praised the agency’s decision to move forward with the regulatory process for creating drinking water standards for two PFAS chemicals frequently found in drinking water, PFOA and PFOS.

Concerns Surface

As more details emerged from the agency, however, environmental groups and some lawmakers expressed concern about the agency’s timeline for setting drinking water standards.

“It has taken the EPA nearly a year just to kick the can even further down the road,” said Senator Tom Carper, the top Democrat on the Senate Environment and Public Works Committee.

In a statement, Republican Sen. Shelley Moore Capito of West Virginia was more measured. Capito has repeatedly met with EPA Acting Administrator Wheeler on the PFAS issue and last week joined a bipartisan group of senators to urge the agency head to set a standard.

“It’s encouraging to see the EPA taking action to address something that has proven to be a real problem in a number of communities across the country—including in West Virginia,” Capito said. She added she intends to “remain actively engaged to push EPA to complete the process expeditiously and put that standard in place.”

In a call with reporters, Dave Ross, assistant administrator for EPA’s Office of Water, stressed the agency will go through the rule making process set out by the Safe Drinking Water Act. That will include using the most up-to-date science and taking public comment.

“We are going to move as quickly as we possibly can to do this,” Ross said, adding that whatever EPA proposes will likely be challenged in court. “So we will move with all deliberate speed.”

Potential Delays

But what that speed could look like is “up in the air,” said Genna Reed, lead science and policy analyst with the Union of Concerned Scientists.

The Safe Drinking Water Act gives EPA the authority to create drinking water standards for chemicals. MCLs set legally enforceable limits on the amount of a substance allowed in public drinking water systems.

In order to consider setting an MCL for a chemical, the agency must prove the pollutant adversely affects public health, is widespread in public water systems, and that regulation would reduce health risk.

EPA committed to starting that process in its action plan. Reed said now the agency will begin the process of filtering through the science surrounding these chemicals, a process she fears could face interference by political appointees at the agency who have ties to the chemical industry.

C8, or PFOA, was used in many consumer products, including Teflon pan coating. Photo: Wikimedia Commons

EPA’s Deputy Assistant Administrator for Chemical Safety and Pollution Prevention, Nancy Beck, formerly worked at the American Chemistry Council, an industry trade group. The White House’s nominee to head EPA’s Office of Land and Energy Management, which manages the Superfund program, is former Dow Chemical Co. counsel, Peter Wright.

“There absolutely could be a determination that PFOS and PFOA should not be regulated under the Safe Drinking Water Act, which we would argue is perhaps not in line with the best available science,” she said. “So, it’s really important to follow and see what the EPA does here and to make sure that they’re consulting with their science staff and really listening to what they’re saying on these two chemicals.”

Currently, EPA has issued a health advisory for the chemicals of 70 parts-per-trillion, but some states, including New Jersey, have adopted lower acceptable contamination levels.

During his Thursday press conference, EPA Acting Administrator Wheeler said the agency is already taking enforcement actions to cleanup contaminated drinking water if levels are higher than the health advisory recommendation.

Reed, with the Union of Concerned Scientists, noted if a MCL is created for PFOA and PFOS, it would trigger much more monitoring. For example, water systems would be required to provide water quality reports showing how much of these chemicals are found in their systems.

Uncertain Risks

Public health advocates also raise questions about continued exposure to potentially unsafe levels of PFAS chemicals while the agency considers creating drinking water standards.

The Environmental Working Group estimates 110 million Americans drink water with dangerous PFAS levels. EPA estimates PFAS have been found in the blood of 98 percent of Americans.

report released last year by the Agency for Toxic Substances and Disease Registry(ATSDR), found PFAS chemicals can endanger human health at levels 7 to 10 times lower than the EPA says is safe.

The report, or toxicological profile, draws upon the best available research. At 852 pages, it is aimed at giving public health officials a comprehensive picture of how fluorinated chemicals may affect human health as well as highlight the different ways people may be exposed to them.

The study finds people are exposed to fluorinated chemicals in a variety of ways including through contaminated soil and water, food packaging laced with the chemicals, and some more directly by living near plants that manufactured C8.

It also finds exposure to high levels of some fluorinated chemicals may affect fertility, increase cholesterol levels and increase the risk of thyroid disease.

David Andrews, senior scientist with Environmental Working Group, said there is already an overwhelming body of scientific evidence about the health impacts of PFOA and PFOS, informed largely by a study conducted in the Ohio Valley following a settlement agreement with DuPont.

he Chemours facility, formerly the DuPont company’s site, in Washington, West Virginia. Photo: Glynis Board, Ohio Valley ReSource

“At this point there is close to or over 100 studies of their impact on human health really indicating the potential to cause impacts to our immune system, reproduction, development as well as all the other health effects including cancer, impacts on liver, kidney,” Andrews said. “Really, it’s just an incredible range of our bodies’ functions that these chemicals can really interrupt and disrupt.”

He noted the agency’s new plan does not address the thousands of other chemicals in the PFAS class, many of which researchers know little about. In the United States, more than 600 PFAS chemicals are allowed for use. EPA said it intends to do toxicity assessments for a handful.

“It was very much unclear what if any action they would take for other chemicals in this class,” Andrews said.

Cincinnati-based attorney Rob Bilott successfully brought a class action lawsuit against DuPont, representing more than 70,000 people affected by the company’s dumping of C8, or PFOA, in communities in the Parkersburg, West Virginia, and Marietta, Ohio, area.

Bilott said in a statement that EPA has for years shrugged off taking action and this latest plan followed the pattern. During the course of the litigation against DuPont, which lasted more than two decades, internal communications from the company were made public that showed the company knew about the chemical’s health effects since the 1950s.

In 2001, Bilott wrote to the EPA detailing what DuPont knew. Fifteen years later the agency released its health advisory.

“EPA has been promising to address the serious public health threat posed by PFAS chemical exposures for almost twenty years,” Bilott said. “Promising to conduct more studies, investigations and further work toward formal regulatory action at some point in the future, is not the same as actually taking formal regulatory action now.”

EPA’s Next Moves

The agency said it will “explore” placing PFAS chemicals on its Toxics Release Inventory. If completed, that would allow for better tracking of how they are released into the environment.  

EPA’s action plan states it intends to include PFAS in next Unregulated Contaminant Monitoring Rule, or UCMR. During the last round of testing, EPA found that 1.3 percent of the public water systems monitored had concentrations of PFOA and PFOS that were greater than the agency’s health advisory limit.

When asked at what level the agency would screen for PFAS chemicals, Wheeler said career staff would make that determination.

This article was originally published by Ohio Valley ReSource.

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