CHARLESTON — The federal Environmental Protection Agency (EPA) is requiring West Virginia lawmakers to replace $1 million they took from a fund meant for limiting air pollution that causes human health effects.
Last week during a special legislative session mainly focused on education, state lawmakers passed House Bill 156 in order to let the state budget office put the $1 million back into the West Virginia Department of Environmental Protection's Air Pollution Control Fund.
Lawmakers took the money from the fund when creating the budget for fiscal year 2017, amid a budget shortfall.
Companies that emit large amounts of nitrogen oxides, sulfur dioxide, carbon dioxide, lead, particulate matter, hazardous air pollutants, and volatile organic compounds must receive permits from the state DEP to emit those air pollutants, which include emissions linked to cancer, premature death in people with heart and lung disease, aggravated asthma, birth defects, and other health effects, as well as climate change.
As part of the permit process, they agree to keep those emissions under a certain level to protect human health.
During an EPA audit, WV DEP learned taking the money was a violation of Title V of the Clean Air Act, according to a letter WV DEP Cabinet Secretary wrote to State Budget Office Director Michael Cook, asking the budget office to put the money back.
"That violation could result in revocation of federal approval of our Title V program," he wrote, meaning that the federal government would take over West Virginia's air pollution permitting program.
The federal government requires the DEP to use Title V money to run the permitting program, as well as check back with companies to ensure they are in compliance and using the most up-to-date pollution control technology, according to Jim Kotcon, conservation chair of the West Virginia chapter of the Sierra Club, an environmental advocacy organization.
"It would be easy to blame this on simple inexperience at the time of a new governor and many new leaders in the Legislature, but a portion of this problem also has to be attributed to the anti-environmental attitudes of the regulated industries, the legislators and the governor," Kotcon said.
"The tendency to bash the EPA and the Clean Air Act may well be a contributing factor to the illegal use of these funds in 2017, and the need to reimburse those funds this year. When air pollution permitting and enforcement is viewed as an unneeded luxury or worse, a hindrance to business, instead of as critical to human health, the temptation to transfer these air pollution funds to other uses is exacerbated."
In an email, Terry Fletcher, acting DEP communications director, said that DEP did not agree to sweeping the fund at the time. However, he said there was no practical effect on the agency, because the fund had a surplus from increasing permitting fees in 2015.
He said the only effect, had the Legislature not passed House Bill 156, may potentially have been a future increase in permit fees.
"All permits in the program have been enforced," he said.
Kotcon, meanwhile, said that if the fund had a surplus, it could have been used on hiring more people and more rigorous enforcement.
"It is worth noting that industry is constantly crying to the Legislature about delays in issuing permits, but never seems to mind cutting the funding to the agency that would pay for it," he added. "I suspect that if industry reps had spoken up to protect this funding in 2017, we would not be in this situation today."
Del. Eric Nelson, R-Kanawha, who was House Finance Chair at the time, said that he did not recall discussion of sweeping the account, noting more than 50 accounts were swept at the time. Senate Finance Chair Craig Blair, R-Berkeley, did not return calls.
Del. Eric Householder, R-Berkeley, current House Finance Chair and former House Finance Vice-Chair, declined an interview. Michael Cook, State Budget Office director, did not return a call. Del. Mick Bates, D-Raleigh, emailed some information on the appropriation, but did not immediately return a call for an interview Friday.
House Finance Vice-Chair Vernon Criss, R-Wood, said he wasn't in office at the time, and noted the sweep would have occurred during then-Gov. Earl Ray Tomblin's administration. But he also stood by lawmakers' decision, saying that a DEP official had told the House Finance Committee earlier this month that the DEP had said there was no problem in 2016.
"We were told by them that there wasn't any problem by sweeping this account," Criss said. "We didn't do it knowing we were violating the law or anything."
According to meeting minutes, that DEP official speaking to the committee this month was Randy Taylor, CFO.
Criss said Taylor had told lawmakers the EPA was auditing the agency, and had told them lawmakers needed to return the money. But Criss said he had advocated for not returning it yet, noting the final audit wasn't complete and the DEP had only received a preliminary version.
"I thought they were jumping the gun to move the money back in there," he said.
The DEP says the audit was a routine audit, not in response to some sort of violation. An EPA official, Terri White, did not respond to emails.
Criss also said that shifting of money is common during the budgetary process.
Michael McCawley, who spent over 27 years as a public health service officer with the Centers for Disease Control and Prevention at the National Institute for Occupational Safety and Health, said that's true. Government officials do frequently move around money — "creative bookkeeping," he said.
But McCawley, clinical associate professor in the WVU School of Public Health's Department of Occupational and Environmental Health Sciences, noted that moving the money was still in violation of federal law.
And he compared it to a couple putting money in a piggy bank for a vacation, and then one spouse taking some of the money for themselves, instead.
He said, "The fight would be about the respect, right?"
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