by Sarah Elbeshbishi for Mountain State Spotlight
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Moments before the House Energy and Public Works Committee overwhelmingly advanced a measure that rolls back drinking water quality protections, Del. Evan Hansen, D-Monongalia, spoke up once more in opposition.
“This bill is about whether this Legislature is going to allow more toxic pollution in West Virginia streams,” Hansen told the packed committee room.
“It’s illegal to discharge pollution into West Virginia streams without one of these permits and they’re written to protect water quality in receiving streams,” Hansen said. “And this is why the attorney for Chemours proposed this amendment. To relax the permit for his client.”
The committee eventually moved the bill to the House floor. The full House will vote on the measure on Wednesday.
Currently, nearly all streams and rivers in West Virginia are classified as drinking water, meaning that companies discharging pollutants into that water are supposed to limit those to levels that are safe for human consumption.
But how the state’s waterways are categorized could change as lawmakers — at the urging of chemical companies — move forward with new rules that would allow streams and rivers to be reclassified if it’s demonstrated that they don’t have the capacity to reliably and continuously support a public water system.
This latest push by industry lobbyists comes as Chemours Company is appealing one of its permits, arguing that the improper categorization of a stream has resulted in inappropriate permit limits and restrictions.
Bill Bissett, president of the West Virginia Manufacturers Association said this legislation and the Chemours permit appeal are not related. He said that the group has opposed statewide application of drinking water standards long before the Chemours case.
“The WVMA’s interest is in seeing that the water quality standards are reasonably applied to all its member companies in a manner that protects the public,” Bissett wrote in an email.
But the state industry group and Chemours do share a connection. The WVMA’s general counsel and lobbyist David Yaussy also serves as a lobbyist for Chemours and is currently representing the company in its permit appeal.
Prior to the committee vote last week, Yaussy said, “I’m here on behalf of Mr. Bissett today, and we’ll do it by email.” He did not respond to emailed questions.
Before the House committee voted to advance the bill, Del. Bob Fehrenbacher, R-Wood, urged lawmakers to support it, noting that the change to the water quality protections had essentially been greenlighted by the U.S. Environmental Protection Agency and the state Department of Environmental Protection, both of which he said are charged with “protecting all of us.”
Fehrenbacher said in an interview that he was not aware of Chemours’ permit appeal until Hansen mentioned it during a previous committee meeting.
He told lawmakers that allowing the rule change was ensuring that what was being protected was actually intended to be drinking water.
“This change basically allows that common-sense interpretation to be the rule in West Virginia,” he said.
Fehrenbacher worked as a plant manager at the Washington Works site for the Chemours company before retiring.
Dry Run Landfill and the C8 public health crisis
The former DuPont, now Chemours, Washington Works plant in Wood County has a long history of public health and environmental concerns related to its use of C8 — a chemical that resists heat, water, oil and grease — to produce common everyday items, including nonstick pots and pans.
In the 1980s, farmer Earl Tennant’s cows started dying downstream of a recently constructed, unlined landfill near the base of Dry Run Creek, where DuPont was disposing of C8 — a type of PFAS, also known as “forever chemicals” because they don’t naturally break down.
After purchasing hundreds of acres of the Tennants’ property to build its landfill, DuPont began dumping hundreds of tons of C8 contaminated waste onto the site after the company discovered that the chemical was leaching into the groundwater beneath its disposal ponds on its Washington Works site.
The company also discovered that the chemical had seeped into the drinking water sources for surrounding communities, including Parkersburg, Vienna and Lubeck.
Following years of losing hundreds of his cattle and documenting the discolored and frothy waters of the Dry Run Creek, Tennent and his family sued DuPont. That lawsuit marked the beginning of what became a series of legal battles against the company that spanned more than two decades.
In 2017, DuPont and Chemours — a spinoff of DuPont which now owns and operates the Washington Works site — agreed to pay a total of $670.7 million to settle the more than 3,500 cases in the class-action lawsuits against DuPont over health problems, including kidney and testicular cancer, caused from exposure to C8.
DuPont has consistently denied any wrongdoing related to C8.
In August, Chemours, represented by Yaussy, appealed to the West Virginia Environmental Quality Board to revise its permit to discharge pollution from its Dry Run Landfill. In its appeal, the company argues that the creek the landfill discharges into is improperly categorized as a public water supply, resulting in an incorrect “forever chemical” limit.
Whether or not the appeal is successful, under the new rules being written by lawmakers, the company could try to recategorize Dry Run Creek from its current drinking water use designation.
During the committee’s Monday meeting last week, Hansen asked Yaussy whether he anticipated he would try to change the creek’s use designation.
“Would I? I’m not here to speak on behalf of Chemours. I’m here to speak, I assume, on behalf of the WVMA,” Yaussy replied. “The WVMA was who advanced this proposal — negotiated with the DEP.”
“Do you personally represent Chemours and their permitting?” Hansen asked.
“Yes. I do, but I’m not going to talk about what work I do for a client,” Yaussy said.
Chemours’ other troubles
In December, the West Virginia Rivers Coalition filed a lawsuit against Chemours accusing the company’s Washington Works site of violating federal law since 2023 by failing to comply with its permit limits and discharging forever chemicals into the Ohio River at levels exceeding the amount allowed.
Under the federal Clean Water Act, waterways are designated for different purposes, including drinking, fishing and water contact recreation. A designation determines what water quality standards apply and establishes pollution discharge limits in permits issued to businesses.
The lawsuit also alleges that the company has reported “numerous violations” of its permit limits for several chemicals, including PFOA, which is a type of forever chemical that the EPA has determined there is no safe level of exposure to. WV Rivers also accused Chemours of violating its discharge limits for GenX, the chemical used to replace C8 in response to the health concerns.
Although GenX was intended to be a safer alternative to C8, it was eventually determined that was not the case. In fact, the EPA found that the effects of GenX could be equally harmful or even more dangerous than the chemical it was meant to replace.
The Ohio River supplies more than five million people with drinking water.
In 2023, the EPA issued an administrative order to force Chemours to take corrective action, but the company failed to do so, and the federal agency has not taken any further action, according to the WV Rivers’ lawsuit.
In an emailed statement, Chemours spokesperson Cassie Olszewski said that the company is aware of the legal action filed by WV Rivers and “is disappointed at the action given that the Coalition’s concerns are already being addressed through an April 2023 Consent Order between U.S. EPA and Chemours.”
“As always, Chemours is committed to being a good neighbor and invites the Coalition to engage directly with the Washington Works team as a community stakeholder,” Olszewski wrote.
Following new House rules, bill goes to vote with little public notice
Back in the committee room on Thursday— before lawmakers voted to send the amended rules to the House floor — a man in a grey and dark red flannel shirt sitting on one of the benches lining the perimeter of the room spoke up.
“Questions from the public, Mr. Chairman, if you will entertain that,” said Jeff Seager, a South Charleston resident.
But the time for public comments had already passed, House Energy and Public Works Committee Chair Bill Anderson, R-Wood, told Seager.
“We don’t take questions from the public at this time,” Anderson said.
Under new House rules, members of the public can testify on legislation only on the first day it’s considered in committee. This meeting was the second day the committee had taken up this specific measure.
But because the changes to the DEP rules were introduced during the first Monday meeting as a substitute for the bill on the committee’s agenda, the measure wasn’t on the agenda, so there was no notice given to the public.
On Tuesday, Hansen tried to amend the bill on the House floor by removing the new language. He urged his colleagues to not allow more toxic pollution into West Virginia streams but the House rejected his amendment.
To have a roll call vote that puts lawmakers on the record for or against an amendment, at least 10 members have to ask for it. Although Hansen called for a roll call vote, he didn’t have the numbers to make it happen.
UPDATE, March 13, 2025: The House of Delegates passed this bill and it advances to the Senate next.
