STATE OF WEST VIRGINIA



PRELIMINARY PERFORMANCE REVIEW OF THE


Ohio River Valley Water Sanitation Commission


Benefits of Participation Outweigh Cost

Statutory References to Compact Membership Incomplete

West Virginia Vacancy on Interstate Compact Commission




OFFICE OF LEGISLATIVE AUDITOR
Performance Evaluation and Research Division
Building 1, Room W-314
State Capitol Complex

CHARLESTON, WEST VIRGINIA 25305
(304) 347-4890


April 1999
Introduction & Background


The Ohio River Basin encompasses portions of 14 states in an area of more than 200,000 square miles, which constitutes over 5% of the total United States land mass. The Ohio River itself, formed in Pittsburgh at the confluence of the Allegheny and Monongahela Rivers, is 981 miles long and flows through or borders six states: Illinois, Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia. Over 25 million people reside in the Ohio River Basin, or approximately 10% of the total U.S. population. Of these, nearly 3,000,000 people use the Ohio River as a source of drinking water from 32 public water supply intakes.

The Ohio River Valley Water Sanitation Commission (ORSANCO) is an interstate agency that controls water pollution. It was established to implement the Ohio River Valley Water Sanitation Compact, which was negotiated by the representatives of the states of Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Tennessee, and West Virginia. All of these states, with the exception of Tennessee, approved, ratified, adopted, and enacted into law the Compact. Virginia, which did not participate in the original negotiation, authorized and requested its governor to execute the Compact. It was signed in 1948 in response to the rapid increase in the population of the various metropolitan areas located within the Ohio drainage basin, and the growth in industrial activity in the region that has resulted in serious pollution of the waters and streams within the basin. An example of the pollution that existed is listed below.

According to an ORSANCO report, the Ohio River was often referred to as an "open sewer" in the 1930s. During this time a drought period resulted in a succession of gastroenteritis epidemics along the Ohio River Valley. The first of which occurred in Charleston, West Virginia in 1930. According to the ORSANCO report, there were approximately 4,000 to 7,000 cases of gastroenteritis among the Charleston's 60,000 residents. Just a few of the urban areas along the Ohio River were sewered in 1930, and of those, less than one percent were served with any type of treatment facility. States were even passing laws discouraging pollution control. For example, an Ohio law said that no river community could treat its sewage unless all upriver communities did so first. As an example of the condition of the water of the Ohio River in 1930, the report provides the following discussion:

The pollutional load contributed by Cincinnati, Ohio (1930 pop., 450,000) was particularly distressing. To emphasize the point, someone creatively calculated that Cincinnati's daily pollutional load was equivalent to "720 dead horses" ­ and that this amounted to the discharge of one dead horse every two minutes.

ORSANCO manages and operates programs for water quality monitoring and assessment, assists in emergency response management, has established pollution control standards for the Ohio River, and facilitates interstate cooperation and coordination through an extensive committee structure. Each signatory state pledges cooperation in the control of future pollution and the reduction of existing pollution. The territory embracing the signatory states forms the Ohio River Valley Sanitation District, which is the area subject to the Ohio River Valley Water Sanitation Compact.

The Commission consists of three commissioners from each state and three commissioners representing the federal government. The commissioners serve without compensation, but are paid their actual expenses incurred in and incident to the performance of their duties. The governor of West Virginia, by and with the consent of the Senate, appoints two of West Virginia's commissioners. The remaining commissioner is the Director of the Division of Environmental Protection, who serves as an ex officio member. A listing of West Virginia's Commission members can be found in Appendix A. The Commission has, after investigations and a hearing, the ability to issue an order or orders upon any municipality, corporation, person or other entity discharging sewage or industrial waste in the Ohio River or any water that borders or flows between two states.

Salaries, office and other administrative expenses are appropriated by the signatory states on a proportional basis according to the annual budget determined by the Commission and approved by the states' governors. One half of this amount is prorated among the states in proportion to their population within the District at the last federal census, the other half is prorated in proportion to each state's land area within the District. ORSANCO'S member states and FY 1999 financial contributions are listed in Table 1 below.


Table 1
Ohio River Valley Water Sanitation Compact Members


MemberFY99 Financial Contribution
West Virginia$120,600
Indiana$215,500
Illinois$56,900
Kentucky$236,100
New York$11,600
Ohio$295,600
Pennsylvania$153,900
Virginia$40,800
Total$1,131,000

ISSUE AREA 1:The Benefits Of West Virginia's Participation In ORSANCO Outweigh Its Cost

West Virginia Code §4-10-5 required this Preliminary Performance Review to be conducted of "West Virginia's membership in the Ohio River valley water sanitation commission." Because the Commission was created by interstate compact and is not fully under the control of the State of West Virginia, this review's primary objective was to determine if the benefits of ORSANCO to the State of West Virginia justify its costs.

West Virginia's Share of ORSANCO Expenses

West Virginia contributed $120,600 to ORSANCO's FY1999 total budget of $2,514,427. This amounts to 4.8% of ORSANCO's total budget. The Compact requires each member state's share of total planned expenses to be determined by the following formula:

...one-half of such amount [the amount to be shared among the signatory states] to be prorated among the several States in proportion to their population within the District at the last preceding Federal census, the other half to be prorated in proportion to their land area within the District.

A listing of the signatory states, their land areas and populations within the District, and share of the 1999 budget is provided in Table 2. Appendix B provides a map of the District.

Table 2
Distribution of Proportional Shares of FY 1999 Commission Budget
Based on 1990 Census Information

StateArea (Sq. Miles)PopulationFY99 Appropriations
Illinois10745623454$56,900
Indiana291353882781$215,500
Kentucky393753269605$236,100
New York1904163747$11,600
Ohio295706692023$295,600
Pennsylvania156203451633$153,900
Virginia7175515052$40,800
West Virginia206101601541$120,600
Subtotal (State)15413420199836$1,131,000
U.S. EPA 106 Grant$370,000*
Other Federal Funds$643,427
Other Program Funds$370,000
Subtotal (Non state)$1,383,427
Total15413420199836$2,514,427
* Budgeted amount as of May 1998. Subsequent to the completion of this report ORSANCO informed the Office of the Legislative Auditor that this amount was actually increased to $681,000.

As shown in Table 2, $1,383,427 or 55% of ORSANCO's funding is derived from federal and other non-state sources. Of the state portion of funding amounting to $1,131,000, West Virginia contributes 10.7 % of the total bourne by the eight signatory states. Since state allocations are based on the land area and population within the Ohio River watershed, the funding mechanism provides a special advantage to the State of West Virginia. Of its total 981 miles, 277 miles of the Ohio River are located within West Virginia's borders. Actual river frontage is not considered in the funding formula. Thus, expenses for river site activities such as monitoring water quality; fish tissue analysis; regulating pollution; and providing clean-up activities, such as ORSANCO's River Sweep shoreline clean-up project are shared by states such as New York and Virginia which have no part of the Ohio River within their borders, and Pennsylvania and Illinois which share only a small portion of the River relative to West Virginia, Ohio, Kentucky, and Indiana (see Table 3). In the absence of the Compact, the costs relevant to West Virginia's portion of the River would be the State's responsibility. Hence, the State receives the benefit of these river site activities, as well as the economic and recreational benefits of the River, without additional costs. See Table 4 for a listing of ORSANCO water sampling stations.

Table 3
Ohio River Miles Within Each Signatory State

Signatory StateOhio River Miles
Pennsylvania40 miles (Milepoints 0-40)
West Virginia277 miles (Milepoints 40-317)
Ohio450 miles (Milepoints 40-490)
Kentucky664 miles (Milepoints 317-981)
Indiana358 miles (Milepoints 490-848)
Illinois133 miles (Milepoints 848-981)
New York0 miles
Virginia0 miles

Table 4
ORSANCO Sampling Locations

StationMile Poin tTypeStationMile PointType
1.Pittsburgh (Allegheny)7.4*M, O24.Lucasville (Scioto)15.0*M
2.South Pittsburgh - Hays Mine (Monongahela)4.5*M, O25.Meldahl436.2M
3.Neville Island - West View4.5O, B26.Cincinnati462.8O
4.Beaver Falls (Beaver)5.3*M27.Newtown (Little Miami)7.5*M
5.Beaver Valley34.9O28.Covington (Licking)4.7*M
6.New Cumberland54.4M29.Anderson Ferry477.5M, B
7.Weirton65.1O30.Cleves (Great Miami)8.0*M
8.Pike Island84.2M31.Markland531.5M
9.Wheeling86.8O32.Louisville600.6M, O
10.Wheeling92.8B33.West Point619.3B
11.Hannibal126.4M34.West Point625.9M
12.Willow Island161.8M35.Cannelton720.7M
13.Marietta (Muskingum)0.8*M36.Sebree (Green)41.3*M
14.Parkersburg190.3O37.Newburgh776.1M
15.Belleville203.9M38.Evansville791.5O
16.St. Albans (Kanawha)38.3*O39.Evansville797.3B
17.Winfield (Kanawha)31.1*M40.Uniontown846M
18.Gallipolis279.2M41.New Harmony (Walbash)51.5*M
19.Huntington304.4O42.Smithland918.5M
20.Huntington314.8B43.Pinkneyville (Cumberland)16.0*M
21.Louisa (Big Sandy)20.3M44.Paducah (Tennessee)5.0*M
22.Greenup341M45.Paducah935.5O
23.Portsmouth350.7O46.Paducah938.9M
KEY:* From confluence with the Ohio River
B - Bacterial Monitoring;M - Bimonthly Sampling;O - Organics Detection System
Highlighted stations are located upstream from, within or bordering West Virginia.
NOTE:An ODS site which was added between Louisville and Cincinnati in 1997, is not shown above.
SOURCE:July-December 1997 ORSANCO Quality Monitor

Value of ORSANCO Programs

The Ohio River Valley Water Sanitation Commission (ORSANCO) monitors and operates several programs and projects within the signatory states. West Virginia is greatly impacted by many of these programs and projects. In June of 1998, ORSANCO's Program and Finance Committee directed ORSANCO's Technical Committee to complete a Program Prioritization Survey. During this Legislative Preliminary Performance Review, the Program Prioritization Survey was discussed with the entire West Virginia ORSANCO delegation, which included the Chief of the Office of Water Resources serving as the designate of the Director of the Division of Environmental Protection, and a staff member of the OWR serving as a member of the ORSANCO Technical Committee.

Most of the Program Prioritization Survey focused on the specific programs provided by ORSANCO and asked the following four questions with respect to each program area:

Necessary €Desirable €Not Necessary €
Yes €No €
Yes €No €Not Applicable €
Increased €Decreased €Held Constant €

According to the Office of Water Resources, 12 ORSANCO programs are important to federal/state/local agency efforts and would require the diversion of OWR or other State resources if they were terminated. These indispensable ORSANCO programs include the following:

€Spill Detection and Notification
€Water Quality Monitoring
€Water Quality Assessment
€Biological Studies
€Watershed Protection
€Watershed Pollutant Reduction Program
€Evaluation of Nutrient Loads
€Enhanced Biocriteria Development
€Delineation of Mixing Zones
€Determination of Background Water Quality
€Evaluation of Water Quality Models
€Biological Management Information System

Following the meeting with the West Virginia Delegation to the Commission and OWR staff, the Office of the Legislative Auditor asked the Chief of the Office of Water Resources to estimate the cost that West Virginia would have to bear to replace these 12 ORSANCO programs. The value of these 12 ORSANCO programs, as estimated by the Office of Water Resources, is summarized in Table 5. The official OWR response providing these estimates is included in Appendix C.

Table 5
Estimated Value of Programs that Benefit West Virginia


ProgramEstimated Person Years*Estimated Value
Spill Detection and Notification 0.25$20,000
Water Quality Monitoring0.5$40,000
Water Quality Assessment0.5$40,000
Biological Studies0.25$20,000
Watershed Protection0.5$40,000
Watershed Pollutant Reduction Program0.5$40,000
Evaluation of Nutrient Loads0.25$20,000
Enhanced Biocriteria Development0.1$8,000
Delineation of Mixing Zones0.25$20,000
Determination of Background Water Quality0.1$8,000
Evaluation of Water Quality Models0.1$8,000
Biological Management Information System0.1$8,000
Total3.4$272,000
* Based upon one person year salary/benefit plus support at $80,000.

The OWR estimates the value of these 12 core ORSANCO programs at $272,000. When compared to the State's ORSANCO funding of $120,600, it is easy to justify the continuation of West Virginia's membership in the Compact. In addition, there are other ORSANCO programs which provide benefit to West Virginia but were either not included in the Program Prioritization Survey or considered essential to the regulatory process.

ORSANCO maintains and operates 15 Organic Detection System sites on the entire length of the Ohio River. Five of these sites are located in West Virginia, with one being on the Kanawha River. Certain industries and public utilities help operate these sites by collecting daily samples in order to detect early warning signs of several organic pollutants and track long-term trends. OWR estimates the annual cost to maintain and operate each of the five sites at $15,000. Therefore, West Virginia receives an additional estimated benefit of $75,000 a year from the Organic Detection System program.

According to the Chief of Office of Water Resources, West Virginia currently benefits or will benefit from funding sources recently secured by ORSANCO in the following areas (quoted from letter in Appendix C):

€$500,000 funding from EPA largely supporting data collection and modeling work for the completion of the Total Maximum Daily Load (TMDL) process required to be completed by West Virginia/EPA under an existing Court Ordered Consent Decree on Dioxin, PCBs and Chlordane. Substantial information on extremely costly ($2,000 - $5,000 per sample) collection and analytical work for data on the Kanawha River as well as the Ohio River mainstem have been pursued and continues.

€Assessment of Nutrient Loading which will benefit West Virginia's requested participation on EPA's Nutrient Team recently formed to fulfill one of the goals of the President's Clean Water Action Plan.

€Current Wet Weather Demonstration Project funded by the Virginia Environmental Endowment on the Hannibal Pool (one of three conducted on the entire mainstem length) will offer critical information of the affects of Combined Sewer Overflows (CSOs) in the Wheeling to New Martinsville area.

€$239,000 grant from EPA to develop the Gen Alert System which will be a series of buoy mounted fluorometers that will assist in early warning to water supplies of possible hydrocarbon contamination (e.g. oil spills).

€Recently received additional $311,000 in 106 funding which is currently recommended to be earmarked for assisting the development of Biological Studies on Fish and Macroinvertibrate Indexes, neither of which have yet been established for West Virginia waters.

€Three current program studies relating to the development of guidance on Delineating Mixing Zones, Determining Background Water Quality and Evaluating Water Quality Models were all directly funded thru the River Users Program. Funding totaling $73,571 was completely supported from industry and utilities. Much of the results of these studies will be used by OWR staff in model selection and permitting evaluation work for the Ohio Mainstem as well as elsewhere in the State.

Another benefit of the Commission is its committee activities which provide opportunities to address and discuss emerging problems. Experiences such as service on the Technical Committee provide key regulatory employees of the member states a chance to meet and discuss issues and solutions and transfer technology. These activities also give knowledgeable citizens, water and wastewater utility operators and industry representatives opportunities to work together with government officials to identify and solve problems.

The Commission also works to get communities involved in protecting and appreciating the economic value of Ohio River. In 1997 ORSANCO organized more than 22,000 volunteers to participate in its River Sweep riverbank clean-up project. Another ORSANCO program, known as River Watchers, gets schools and other groups involved in water quality monitoring by having them collect their own water samples from Valley rivers and streams and perform chemical tests. Data collected is then submitted to ORSANCO and participants practice stewardship of the Valley's water resources.

According to the Chief of the Office of Water Resources,

...ORSANCO's Tracking of Wastewater Discharges Program recently led the OWR to an investigation of a major industry's national permit compliance reporting entry and associated discharge release problem. Inaccurate compliance codings were recording nonexistent violations but additionally, episodic releases of extreme pH ranges were forced to be evaluated which will lead to minimizing the operation's impact on water quality as well as potentially saving product losses to the industry. Manpower shortage at the state level prohibits routine evaluation of discharge data and reports, only remedied in this instance as a result of ORSANCO's oversite program work.

A more detailed description of the 12 ORSANCO programs which are important to federal/state/local agency efforts and would require the diversion of OWR or other State resources if they were terminated follows. This information is a synthesis of ORSANCO's 1999 Program Plan and other publications and OWR valuations of these programs. See Appendix D for program description tables which have been duplicated from ORSANCO's 1999 Program Plan.

Spill Detection and Notification

In order to respond to emergencies and spills more effectively, ORSANCO established the Organics Detection System (ODS) in 1978 in cooperation with Ohio River industries and drinking water utilities. There are 15 ODS stations on the Ohio River and selected tributaries, including a new station between Cincinnati and Louisville which was installed in 1997. When there is an accidental spill, ORSANCO notifies state and federal agencies so appropriate actions can be taken. For example, the Portsmouth, OH ODS site identified an unknown benzene release from an industrial plant near New Boston, OH in January 1997. ORSANCO notified the Ohio EPA and they eliminated the source of pollution. ORSANCO maintains a 24-hour telephone service and posts spill reports to an electronic bulletin board . These services are provided to enhance communications when a spill occurs. In addition, ORSANCO has developed a model of the Ohio River that predicts the activity and concentration of a spill as it travels downstream. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Spill Detection and Notification Program at $20,000 and .25 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Water Quality Monitoring

ORSANCO performs routine monitoring of the mainstem and lower reaches of several major tributaries in order to assess whether the Ohio River is achieving specified water quality objectives. Monitoring programs include year-round bimonthly sampling for certain chemical constituents and physical properties, yearly biological assessments of aquatic life, and seasonal dissolved oxygen and bacteria monitoring. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Water Quality Monitoring Program at $40,000 and.5 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Water Quality Assessment

ORSANCO staff reviews all the encompassing water quality data for validity and evaluates the data to determine adherence to water quality criteria. The water quality assessments help evaluate progress and the effectiveness of the present control efforts. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Water Quality Assessment Program at $40,000 and .5 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Biological Studies

According to the Compact, the Ohio River has to be "capable of maintaining fish and other aquatic life." This program also protects public health and safety by issuing advisories when contaminant levels exceed standards. ORSANCO conducts yearly field studies of fish and macroinvertebrates to determine if the Ohio River meets these goals. In 1997, ORSANCO collected fish from three navigational pools to assess the overall conditions of the biological community. The results indicated that the Ohio River maintains a diverse and healthy fish community in these three pools. In addition, ORSANCO collected samples of macroinvertebrates every five miles along the Ohio River. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Biological Studies Program at $20,000 and .25 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Watershed Protection

Nonpoint source pollution is that which comes from many diffuse sources, as opposed to pollution from industrial and sewage treatment plants which is more easily identified. This pollution is caused by contaminants which are carried from the surface of ground and paved areas by rain runoff and snowmelt. Fertilizers, herbicides, insecticides, oil, grease, acid mine drainage, animal wastes, bacteria from malfunctioning septic systems and toxic cleaning chemicals are examples of pollutants which exist on the surface of watersheds and are commonly carried by precipitation runoff to pollute rivers and streams. This program seeks to understand and abate nonpoint source pollution. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Watershed Protection Program at $40,000 and .5 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Watershed Pollutant Reduction

ORSANCO established a Watershed Pollutant Reduction Program in 1995. The initial focus of the program was on dioxin, a chemical that can affect human health at very low concentrations. In 1997, an innovative sampling technique was utilized to measure dioxin concentrations at three locations on the Ohio River and one on the Kanawha River. Results of three measurements at each site indicated that low concentrations of dioxin were present. This information will be used to help locate and control the sources of this pollutant. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Watershed Pollutant Reduction Program at $40,000 and .5 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Evaluation of Nutrient Loads

During the past decade, researchers have monitored a large section of hypoxia (low dissolved oxygen) in the Gulf of Mexico near the mouth of the Mississippi River. Researchers believe that the hypoxia is caused by high levels of nutrients in the Mississippi. Since the Ohio River is the largest tributary to the Mississippi, it is quite possible that it contributes part of the nutrients that enter the Gulf of Mexico. Low concentrations of dissolved oxygen are harmful to aquatic animal life. High nutrient levels confound the treatment of drinking water. Excessive dissolved nutrients in drinking water may cause foul tastes, staining, damage to appliances, and may interfere with disinfection processes which are vital to the destruction of harmful micro-organisms. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Evaluation of Nutrient Program at $20,000 and .25 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Enhanced Biocriteria Development

According to ORSANCO's 1997 Annual Report, ORSANCO had plans to develop Ohio River "biocriteria" which will be used as a basis for recognizing impairments on the River's fish community. In 1997, ORSANCO developed a tentative list of individual measures needed to specify the overall health of the Ohio River's fish community. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Enhanced Biocriteria Development Project at $8,000 and .1 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Delineation of Mixing Zones

When the effluent of a wastewater treatment or industrial facility is discharged into river or stream, a mixing zone is created, in which certain levels of pollutants may exceed a numeric water quality criteria applicable to most of the river or stream. If the mixing of the effluent and the receiving water is not rapid, the mixing zone could cause harm to aquatic life. According to ORSANCO's July 1998 Source Water Assessment Strategy for the Ohio River, ORSANCO recommends using a tiered-delineation system consisting of three protection zones. This is due to the Ohio River's size and complexity. The purpose of this tiered-approach is to specify the level of source inventory within the Ohio River Basin. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Delineation of Mixing Zones Project at $20,000 and .25 person years to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Determination of Background Water Quality

The Determination of Background Water Quality Project is designed as a guidance project to promote consistency in the protection of aquatic life and human uses of the Ohio River. The strategic objective of the program is to "[i]mprove the base of knowledge about the Ohio River Basin so decisions can be made that are environmentally effective, technically sound, and economically reasonable." The Background Water Quality Project compiles information concerning how other states determine background water quality conditions; performs statistical analysis of available water quality data; and recommends guidelines for determining background water quality conditions. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Determination of Background Water Quality Project at $8,000 and .1 person year to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Evaluation of Water Quality Models

The Evaluation of Water Quality Models is a program designed to promote consistency in the protection of aquatic life and human uses of the Ohio River. The strategic objective of the program is to "[i]mprove the base of knowledge about the Ohio River Basin so decisions can be made that are environmentally effective, technically sound, and economically reasonable." Project activities include reviewing and evaluating water quality models and creating a process for evaluating models. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Evaluation of Water Quality Models Project at $8,000 and .1 person year to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.
Biological Management Information System

The strategic objectives of the Biological Management Information System program are to "[i]mprove the base of knowledge about the Ohio River Basin so decisions can be made that are environmentally effective, technically sound, and economically reasonable," and "[c]oordinate monitoring of water quality in the Ohio River mainstem and lower reaches of the tributaries." Program activities include the development of a biological information database; data entry; facilitating entry of data collected by other entities; and providing for system accessibility and maintenance. The Office of Water Resources evaluated and estimated the value of the West Virginia portion of the Biological Management Information System Project at $8,000 and .1 person year to operate. This is based upon one employee's salary and benefits for a year plus support at $80,000.

Conclusion

ORSANCO's funding situation is favorable to West Virginia for several reasons. More than half (55%) of ORSANCO's funding is provided through federal and private sources. Of ORSANCO's total FY 1999 budget, West Virginia's share is less than 5%. West Virginia's share of ORSANCO expenses is determined by two factors, population and land area within the Ohio River watershed. West Virginia benefits more from ORSANCO than many member states because of the 277 miles of Ohio River which border the State and the ORSANCO programs which improve and protect it. Much of the cost of these programs would have to be bourne by West Virginia if the Compact did not exist. OWR estimates the annual value of 12 ORSANCO programs and the West Virginia organic detection sites to equate to $347,000 ($272,000 for 12 programs + $75,000 for organic detection sites). While other valuable work is provided by the Commission, these programs alone show a benefit of nearly 3 times West Virginia's contribution of $120,600. According to the Chief of the Office of Water Resources,

West Virginia's participation in ORSANCO is judged to be extremely valued and critical to much of our mandated responsibilities not only to the Ohio mainstem but to other West Virginia waters as well. We therefore urge West Virginia's continued participation in this Compact...

As an interstate Compact, there is some question about whether West Virginia can withdraw from this agreement made with seven other States and Congress. Certainly, the West Virginia Constitution prohibits the actions of one Legislature from binding another, but there has also been a pledge of faith made to the other signatory States and the Federal government. Thus, there is some uncertainty about whether the inaction of failing to continue West Virginia's membership under the Sunset Law could effectively discontinue West Virginia's participation in the Compact. In light of the value the Compact and Commission represent to the State of West Virginia and the uncertainty about whether the State could effectively break the Compact through the sunset process, if it so desired, the Legislature should consider a maximum continuation for ORSANCO.

Recommendation 1

The Legislature should consider continuing West Virginia's membership in ORSANCO for the maximum of six years under the Sunset Law.

ISSUE AREA 2:The WV Code Contains Incomplete Information Concerning Compact Membership

West Virginia Code §22C-12-1 contains the Ohio River Valley Water Sanitation Compact. This section identifies the various states that participated in the original negotiation of the Compact. Since that time, Tennessee failed to ratify and Virginia opted to participate in the Compact. State Code makes no mention of Tennessee's failure to ratify the Compact. Section 6 of the Article contains a provision making West Virginia's participation in the Compact contingent upon the "approval, ratification, and adoption and entering into thereof by the states of New York, Pennsylvania, Ohio and Virginia." Thus, the reader may deduce that Virginia is a member the same as the ones named in the actual Compact. In any event, current statute may be easily misunderstood to erroneously include Tennessee and exclude Virginia. Article 12 of 22C in its entirety is included in Appendix E.

A copy of the Ohio River Valley Water Sanitation Compact provided by ORSANCO contains the following introductory language:

OHIO RIVER VALLEY WATER SANITATION COMPACT

THIS COMPACT, Made and entered into by and between the States of Indiana, West Virginia, Ohio, New York, Illinois, Kentucky, Pennsylvania, Virginia and such additional States as may join in its execution,

WITNESSETH THAT:

Whereas, Pursuant to authority of the 74th Congress of the United States, granted by Public Resolution 104, approved June 8, 1936, duly appointed Commissioners respectively representing the States of Indiana, West Virginia, Ohio, New York, Illinois, Kentucky, Pennsylvania and Tennessee have heretofore negotiated a proposed Compact in form as hereinafter set forth and as approved by the 76th Congress of the United States by Public Act No. 739, effective July 11, 1940; and

Whereas, By legislation duly enacted, each of said negotiating States, with the exception of Tennessee, has caused said Compact to be approved, ratified, adopted and enacted into law and has authorized its execution; and

Whereas, By legislation duly enacted, the Commonwealth of Virginia, although not participating in the original negotiation thereof, has authorized and requested its Governor to execute said Compact on behalf of the Commonwealth and thereby to bind the Commonwealth and to indicate its assent to and acceptance of the terms and conditions of the Compact; and

Whereas, Since all conditions upon which the effectiveness of the Compact or the ratification and approval thereof by any of the signatory States was contingent have been met and satisfied, it is now appropriate that the signatory States duly execute the OHIO RIVER VALLEY WATER SANITATION COMPACT, which as specifically set out in the legislation hereinabove referred to, reads as follows:"
[FROM THIS POINT THE EXISTING LANGUAGE OF WV CODE §22C-12-1 CONTINUES]


By not having the above language included in West Virginia Code §22C-12-1, a reader could be misled into thinking that Tennessee is a signatory state and may not be aware that Virginia is a member of the Compact.


Recommendation 2

The Legislature should consider adding part or all of the above language to the Compact, or new language conveying Virginia's membership in the Compact and Tennessee's failure to ratify.

ISSUE AREA 3:West Virginia Has a Vacancy In Its Delegation of Three Commissioners

According to article four of the Ohio River Valley Water Sanitation Compact, ORSANCO should consist of three Commissioners from each of the eight signatory states. West Virginia Code §22C-12-2 makes further specifics concerning West Virginia's appointment of ORSANCO members. §22C-12-2 states,

...there shall be three members of the "Ohio River valley water sanitation commission" from the state of West Virginia. The governor, by and with the advice and consent of the Senate, shall appoint two persons as two of such commissioners, each of whom shall be a resident and citizen of this state...The third commissioner from this state is the director of the division of environmental protection, ex officio...

Since the resignation of a West Virginia Commissioner on May 12, 1998, West Virginia has had only two Commissioners. This has effectively taken one vote away from the State of West Virginia until another Commissioner is appointed. Statute requires vacancies to be filled by the appointment by the Governor, with the advice and consent of the Senate, for the unexpired term.


Recommendation 3

The Governor should make an appointment to the vacant position as soon as possible.