What kind of water protection bill will we get?

March 5, 2014 by Ken Ward Jr.

KANRIVER1

Gazette photo by Lawrence Pierce

It’s not been so terribly long ago that West Virginia leaders were focused on turning the page on Massey Energy and the Upper Big Branch Mine Disaster.  The result was lawmakers passed a terribly weak coal-mine safety bill that’s never been fully enforced, and our state’s miners continue to die on the job (see here, here and here, for example) — the inevitable result, some of our leaders would have us believe, of doing “the heavy lifting” for our nation.

There was also a rush a few years ago to move on from discussing serious issues about the Marcellus Shale natural gas drilling boom, following passage of a much-weakened piece of legislation Gov. Earl Ray Tomblin and his staff worked out with industry lobbyists.  This legislative session, we’ve seen quite a push on to legalize the Department of Environmental Protection’s move to assure gas drillers a place to put the huge amounts of waste their practices generate. But, we’ve seen precious little from lawmakers about the many critical issues that weren’t addressed during that special session in December 2011 (see here, here, here and here).

And certainly, if there has been any talk at the West Virginia Legislature about the climate crisis, it’s been through pandering resolutions aimed at doing little but playing politics and continuing the do-as-little-as-possible approach to these sorts of problems that results in disasters like the Jan. 9 Freedom Industries chemical spill that contaminated the drinking water of 300,000 West Virginians in a nine-county region.

Today on the House floor, we’ll get to see if the West Virginia Democrats who run that part of our government have learned anything in the last few months — let alone in the last few years, since that day in April 2010 when 29 coal miners got blown up at Upper Big Branch.

As I have written before, there are a lot of good things about SB373:

Like previous versions, it greatly expands on what was extremely limited language in West Virginia Code, simply giving the Department of Health and Human Resources authority to write rules concerning drinking water protections. Among the more significant moves by Chairman Tim Manchin is to strike from the bill most of those controversial exemptions that were originally proposed by the West Virginia Manufacturers Association, included in the governor’s bill, and carried over by the Senate and one previous House committee.

Largely, the bill would require state government to start doing what most experts say should have been done all along — actually take chemical inventory information, the location of various threats to public drinking water, and use that information to plan how to be sure those precious water supplies are protected.

The bill even had the West Virginia Environmental Council — seldom a group that’s satisfied with what lawmakers are doing — offering some support, with lead lobbyist Don Garvin saying at the end of last week:

Frankly, folks, there are a lot of good things included in this Judiciary draft bill. Is it perfect? No. But the provisions already included would provide significant new regulation for protecting water supplies across the state.

Now is not the time to start over. Now is the time for the House to pass their version of SB 373, and send it back to the Senate for its consideration.

Let’s get it done.

That was even before House Judiciary made some significant improvements, such as adding a requirement for long-term medical monitoring of residents impacted byt he Freedom Industries’ spill. But it was also before Tuesday evening’s actions by the House Finance Committee, removing that medical monitoring provision, eliminating a mandate for better “early warning” systems on West Virginia American Water’s Elk River Plant, and amending out a provision to block polluters located near drinking water intakes from getting streamlined water pollution permits like the one that allowed Freedom Industries to go without any significant inspections by the state Department of Environmental Protection. Commenting on the Finance Committee’s amendments, Gary Zuckett of West Virginia-Citizen Action said:

The treatment of the water bill in House Finance was in stark contrast to the deliberation of the other two committees. Whereas Health and Judiciary took two weeks to improve the Senate bill, Finance flushed their hard work down the drain in a few hours.

Right now, the legislative website lists at least 10 amendments scheduled to be considered today on the floor, including one that would put the long-term health study back in, another that would reinstate the early warning pollution monitoring, and another to allow for citizen enforcement of the new water law.

Coal Water Pollution

But there are other important issues:

— There are at least 3 major Freedom of Information Act exemptions contained in the current version of the bill. Current law already provides 8 different exemptions for homeland security protections, and the state’s emergency response law already allows companies to withhold information about the specific location of chemical storage tanks. Why do we need more secrecy? Unfortunately, one pending floor amendment would provide even more secrecy, carving out an expanded “trade secret” exemption for chemical tank information, despite the fact that the state’s current FOIA already protects true trade secret information from public disclosure.

— The definition of which tanks are covered by the above-ground storage tank provisions misreads an EPA rule. Instead of covering any facility where the aggregate amount stored is 1,320 gallons, the bill would cover only specific tanks that store that amount. Why would lawmakers not remedy this error, so that the maximum number of potential hazards are regulated?

— House Judiciary Committee members clearly included in an amendment language to require a new state water system study commission to consider the landmark recommendations from the U.S. Chemical Safety Board for a new state chemical accident prevent program. But that provision doesn’t appear in the current version of the bill. Will House leaders remedy what appears to simply be a clerical error, and get that language back in the bill?

In the days after the chemical spill, many West Virginia leaders talked a good game about how public safety and health has to come before the interests of industry in avoiding tougher regulations. But as discussion of this bill has continued, elected officials are back into their normal mode. Look at what the Daily Mail’s Dave Boucher reported happened in the Finance Committee:

The committee also exempted coal companies regulated under the state surface coal mining and reclamation act from several fees, passing two amendments proposed by [Delgate Rupie] Phillips, [D-Logan].

He also tried to exempt such companies from a portion of the bill that would allow the Bureau for Public Health to enter, inspect or conduct sampling at sites that fall under the purview of the state Department of Environmental Protection in the bill.

“Well, they’re already regulated,” Phillips said, when asked why he thought the exemption was needed.

Delegate Nancy Guthrie, D-Kanawha, pointed out the chemical industry is also regulated. That regulation, and a failure to communicate, helped exacerbate the problem following the contamination of the water supply, Perdue said.

Perdue and Finance Committee Chairman Brent Boggs, D-Braxton, said they opposed the amendment In response, Phillips downplayed the danger of chemicals used at surface mining sites.

He said the chemicals used at surface mines are “not the type of chemicals that would cause a big health concern.”

MCHM, the main chemical involved in the recent spill, is used in the cleaning and processing of coal. It’s typically used at coal preparation sites, which are regulated under the act Phillip’s referenced and would have therefore been exempt from the proposed bill under Phillips’ amendment.

That amendment failed. But it’s hard to imagine that a whole lot of industry lobbyists aren’t going to be spending a lot of time between now and midnight Saturday trying to get all of those exemptions — the ones they handed to DEP and the governor’s office in an industry-only “stakeholders” meeting — back into this bill.

The other day, West Virginia American Water resident Jeff McIntyre was telling lawmakers how when he goes to local restaurants, he has “demanded” that servers bring him tap water, not the bottled stuff that many local establishments have been serving to residents who remain wary of the lingering impacts of the chemical spill. McIntyre told lawmakers the only way for the community to move on from the water crisis was for things like bottled water service in restaurants to cease.

Maybe McIntyre is right. There are certainly a lot of leaders eager to move on from what happened in January and February.

West Virginia American Water has stopped providing bulk water distribution, despite residents clearly wanting an alternative to tap water they still don’t trust.  Kanawha County Schools officials have taken the plastic bags off drinking fountains — though you have to wonder whether they think that’s a good decision, given that they waited until Friday night to tell parents about the move. WSAZ-TV reports that the National Guard has taken its last samples of water from the distribution system, though we still don’t know for sure whether MCHM at very low levels that perhaps can’t be specifically quantified  was detected in the latest samples. In some ways, the state is doing this whole thing backwards — first turning the water system back on, and then funding a study that will tell us whether that was done too soon.

Residents of the Kanawha Valley and beyond seem eager to move on as well. But will they be able to do so knowing that the Legislature and the governor did absolutely everything they could to make sure that something like this doesn’t happen again? As the West Virginia Rivers Coalition said yesterday:

The citizens of this state who rely on their government to protect their right to clean, safe drinking water expect and deserve more … We expect that the House, and Senate, will correct these undermining efforts in order to pass a strong water protection bill. This is their opportunity to begin transforming the status quo in this state of favoring industry interests over our health and right to use and enjoy clean water.  As hundreds of thousands of West Virginians now know first-hand, there are no exceptions or compromises when it comes to the need to protect our water.

It would be a shame to turn the page on the water crisis before we know that it’s really over — and, more importantly, without learning everything we can from it.

One Response to “What kind of water protection bill will we get?”

  1. pramatic realist says:

    You are very generous in allowing that some of the problems with the bill are due to misunderstandings and clerical errors. When a bill is gone over with a hundred microscopes like this one, I don’t think there are any errors that have not been made intentionally. Especially not that one about the 1350 gallon tanks.

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