The West Virginia Coal Association and the West Virginia Rivers Coalition were in rare agreement warning about the consequences of a bill supported by chemical companies that would have limited the development of new regulations. 

After testimony from representatives of each organization, the bill did not advance out of the House.

In March, the House Health and Human Resources Committee considered a bill that would have prevented state agencies from establishing new regulations unless they are based on “sound science.” 

During his testimony to lawmakers, Nathaniel Hitt, senior scientist for the West Virginia Rivers Coalition, voiced opposition to the bill despite being a scientist himself. 

“We should all agree that the title of this bill, ‘Sound Science in Regulations,’ is a good thing, and indeed, we should celebrate science for all it has brought us, longer lives, safer communities, cleaner water,” said Hitt, a former research scientist for the U.S. Geological Survey. 

“But unfortunately, the provisions of this bill work against sound science in several fundamental ways.” 

Following Hitt, West Virginia Coal Association Vice President Jason Bostic told lawmakers that while he could appreciate the “motivation and goal” behind the bill, it raised concerns for his organization. 

Under the bill, no state agency would be allowed to propose or enact regulations related to drinking water, water pollution control, hazardous substances or contaminated site remediation, air quality or solid or hazardous waste that are stricter than those at the federal level unless they are based on the “best available science.” 

“Best available science” is defined as studies that are peer-reviewed and published in journals that don’t charge authors a publication or submission fee.  

Del. Bob Fehrenbacher, R-Wood, who is one of the bill’s sponsors, told the committee that the bill is to prevent the use of “junk science,” which refers to theories that are presented as scientific fact despite being untested or unproven.

“This bill seeks to ensure that regulations that are formulated are based on sound science,” said Fehrenbacher. “Although I cannot point at specific instances in the state of West Virginia where such regulations are ill-founded or based on junk science, this sets the stage for that to be prevented going forward.”

However, both Hitt and Bostic warned that limiting state agencies to use only peer-reviewed studies could prevent them from being able to use valuable data.

Bostic told lawmakers that the coal industry has used state and/or industry-collected data to pursue changes to the state water quality standards when federal standards weren’t applicable to the state of industry in West Virginia.

“These would not be studies that were necessarily peer-reviewed or peer judged, but its data gathered by the agencies or the industries that are subject to that regulation,” said Bostic.  

He warned that any legislation that prohibited the use of data gathered specific to the state could inhibit the Legislature’s ability to make meaningful changes to state water quality standards or state mining and reclamation standards. 

Hitt also raised this issue in his testimony as well as in a letter, co-signed by over 30 scientists and medical professionals across West Virginia. 

“This bill as written would significantly undermine the integrity of state agencies by preventing them from using their own technical reports and internal expertise,” Hitt told lawmakers. “Such unpublished reports can provide a sound basis for agency decisions because they are developed by professionals within our state agencies who have local knowledge of the problems and local knowledge of the solutions.” 

The science and medical experts also expressed concern that limiting research and studies from journals that don’t charge authors fees would prevent agencies from using the “best available scientific research” because many journals, including top tier ones, charge publication fees to cover operational costs. 

A similar bill appeared in the Tennessee Legislature earlier this year at the request of the U.S. Chamber of Commerce.   

Tennessee Lookout reported that Mark Behrens, a representative of the U.S. Chamber of Commerce Institute for Legal Reform, said the bill was about preventing “getting ahead and saying we’re going to regulate even if we don’t know that this substance may cause a harm.” 

One substance the bill is aimed at is PFAS, also known as “forever chemicals” because they don’t naturally break down. 

Studies already have shown that exposure to these chemicals can have adverse health impacts, including developmental delays in children, increased risk of prostate, kidney and testicular cancers and decreased fertility.

Last March, the Chamber of Commerce launched a lobbying initiative dedicated to promoting the use of synthetic chemicals and combatting any threats to them driven by concerns over PFAS that might limit their use.

The regulation of “forever chemicals” was not mentioned during the March 18 committee meeting in West Virginia. 

But Behrens was there on behalf of the Chamber of Commerce, and he told the committee that the organization worked with “various stakeholders,” including the West Virginia Manufacturers Association, the Chemistry Council and other businesses on the bill. 

“We were trying to talk to a lot of different affected groups to come up with the best policy language,” he said. 

To close out his remarks on the bill, Bostic warned lawmakers as they consider the measure to “be very cautious to the extent that you limit non-peer-reviewed science or data, because, again, the changes we have experienced in the coal industry were gathered by this industry, our permit holders or the Department of Environmental Protection.”