by Caity Coyne, West Virginia Watch
February 6, 2024
Lawmakers in the House on Tuesday advanced an industry-backed bill that would limit the acceptable uses of data collected from community air quality monitoring programs throughout the state.
The passage of House Bill 5018 — which lawmakers approved 76-19 with five members absent and not voting — followed a public hearing last week as well as several debates both in committee and on the House floor regarding potential constitutional concerns in its language.
The bill, if adopted by the Senate in its current form, would prohibit the use of community air quality monitoring data in administrative proceedings, including fines and sanctions for noncompliance, as well as in third party lawsuits.
Proponents for the bill have said it ensures that data used in such cases is accurate and reliable. Were it to become law, the only data that could be used in any case would be that collected by the state from 13 sites in central and northern West Virginia. Per the Department of Environmental Protection’s 2024 monitoring network, none of those sites are in Southern West Virginia.
Bill Bissett, executive director of the West Virginia Manufacturers Association, said in an interview Tuesday that his organization was “very involved” in crafting the bill. He said that the legislation is a response to federal moves that the industry worries could put stronger emphasis on the role of community air monitoring programs when it comes to framing both noncompliance actions as well as public perception for industry businesses.
“We are not opposed to community air quality monitoring, that is not our problem at all,” Bissett said. “Our concern is either the appearance or perception that suddenly groups that may advocate not in favor of companies or products we produce would be used as enforcement agencies.”
In last week’s public hearing, Morgan King, an environmental advocate and organizer with the Climate Reality Project, told lawmakers and the public that community air monitoring programs are an effort to “fill gaps” in reporting and testing around the state. To limit how that data could be used, she said, is to limit the rights of West Virginians trying to protect themselves from pollutants and inform themselves on the risks of exposure.
“We aren’t attempting to be regulators, we’re simply trying to fill deep, wide gaps … we know that there are not enough air monitors in our state, let alone [the Kanawha Valley],” King said. “Already, our agencies are relying on this secure data. It’s important that we continue to have access to promoting this data to our agencies so they can investigate and use their expertise to determine if there is a problem.”
In a committee meeting last week, Jason Wandling, general counsel for the DEP, told lawmakers that the proposed law would not stop the agency from following up on reports made to it using community air monitoring data. He said that the agency already follows up on such reports and performs its own monitoring to confirm results.
During debates on the House floor on Monday and Tuesday, several lawmakers on both sides of the aisle voiced concerns about the Legislature overstepping its boundaries in the judicial system due to the part of the bill that dictates what can and cannot be accepted as evidence in court proceedings.
“We have got to trust our courts to be able to sift through the evidence, wade through the evidence and make decisions at the courtroom level of what is admissible and what isn’t admissible,” said Del. Brandon Steele, R-Raleigh, who is a lawyer by trade. “This Legislature, this House, has a duty to uphold and defend the separation of powers.”
Del. Larry Rowe, D-Kanawha, called the legislation the “unclean air act.”
“The way the bill is written, the polluter gets to defend itself. It’s a one-sided evidentiary rule. It’s not fair, it makes no sense,” Rowe said. “When we’re dealing with hazardous air pollutants — they can kill, they can maim — [this is] not something we should basically handcuff our secretary of the DEP with dealing with.”
HB 5018 now advances to the state Senate for consideration.