Gazette photo by Lawrence Pierce
It was another late night for the House of Delegates, as members spent a couple of hours working and reworking through amendments to SB 373, the legislative response to the Freedom Industries chemical spill that contaminated the water supply for 300,000 West Virginians.
Delegates carefully put back in some important provisions that the House Finance Committee had summarily removed. A long-term health study of residents impactedby the Crude MCHM contamination, tougher WVDEP permitting for facilities located within the critical zone near drinking water intakes, and better “early warning” systems to detect contaminants near the Elk River water plant that serves the region are all back in the legislation that passed the House unanimously.
Another vote by the House put back in the bill language to require a new state water system study commission to examine the U.S. Chemical Safety Board’s recommendation for a state chemical accident prevention program. That requirement had somehow disappeared from the version that passed out of the House Judiciary Committee. What’s amazing here is that it takes an act of the Legislature for state officials to actually even really consider the CSB’s very sensible recommendation — made by the CSB twice more than two years ago following fatal accidents at two Kanawha Valley chemical plants.
Delegate Meshea Poore, D-Kanawha, deserves special credit for her work on several of these issues. It was particularly smart of Delegate Poore to change one of her amendments to calling for a “long-term medical study” of residents in the spill region from its original language calling for “medical monitoring.” The anti-lawsuit crowd has wrongly turned “medical monitoring” — something that can be awarded only under very limited conditions in lawsuits in West Virginia courts — into such a bugaboo that many lawmakers were standing against it, without really being able to articulate what it was they were against.
Other amendments that could have strengthened the bill were defeated, often without really much of an argument against them. For example, lawmakers overwhelmingly voted down a proposal for a specific provision allowing citizen lawsuits to make state agencies actually — horror of horrors — enforce the various duties the bill puts on those agencies. Lawmakers quibbled with exactly who could bring such suits under the amendment, but I didn’t hear anyone explain why it’s a bad idea to allow courts to step in when agencies blatantly ignore duties to protect our health and safety.
As with the medical study amendment, the anti-lawsuit crowd has made so many lawmakers misunderstand the civil justice system that most of them don’t get the idea that over and over and over again it’s taken citizen lawsuits to force corporate and government action on environmental and public safety threats. Don’t think so? Read the story today about the big U.S. EPA deal with Alpha Natural Resources, and take note of the role citizen suits played in bring about that settlement. West Virginia history is full of examples where citizen suits were the only reason we improved our educational system, reformed conditions in jails, gave coal miners the workplace safety they deserve, and complied with the mandates of federal environmental laws to clean up our streams.
While it was delayed for hours, the House debate last night provided some hopeful examples that West Virginia leaders are learning a little bit from what’s happened over the last few months.
There was the scene, for example, when Judiciary Chairman Tim Manchin was trying to amend back into the bill language to outlaw the WVDEP’s longstanding practice of allowing many industrial facilities to get stormwater pollution permits through a streamlined “general permit” process. A major report by the West Virginia Rivers Coalition and Downstream Strategies proposed this reform, noting that the Freedom Industries site got little regulatory scrutiny under this WVDEP practice.
Delegate Kevin Craig, D-Cabell, didn’t like this amendment. He was concerned it put too much pressure on construction operations, which currently receive stormwater pollution authorization through general permits. Chairman Manchin proposed an alternative, but when it wasn’t enough for Delegate Craig, the two got together and came up with a fairly reasonable compromise. The approved amendment requires more rigorous general permits for pollution sources that are located near drinking water intakes and that have above-ground storage tanks regulated by the new bill.
It was interesting, though, to watch Delegate Craig argue on several amendments against what was clearly the language more protective of our drinking water. It’s worth remembering that Delegate Craig is an executive of an energy company, and that when House Speaker Tim Miley, D-Harrison, decided to create a new “energy committee”, Speaker Miley though it was best to put an energy company executive like Delegate Craig in charge of it. The press release issued at the time explained:
“In order to continue our focus on our state’s natural resources, a standing committee on energy is being created so that it can focus solely on all issues related to energy,” Speaker Miley said. “By doing so, it will cause the introduction of legislation to occur that also focuses solely on energy, including several proposals from our leadership team.”
Delegate Kevin Craig, who is vice president for business development for Natural Resource Partners in Cabell County, will chair the committee.
“The energy industry is so vital to our state, so it makes perfect sense to establish a standing committee that can direct all its attention to the issues that affect that sector,” Craig said. “I am looking forward to getting to work.”
You have to wonder, at some point, if the West Virginia Democrats will think twice about whether industry executives should be in charge of committees that, among other things, oversee what laws and rules get written to regulate those very industries. Could that sort of politics be what got West Virginia where we are now in the first place?
There were some other moments in the House debate that suggested many lawmakers still don’t really get it.
First, Delegate Stephen Skinner, D-Jefferson, successfully amended the bill to remove language exempting the coal industry from paying chemical tank registration fees that would fund the new WVDEP regulatory program. But right after that, there was the amendment from Delegates Larry Williams, D-Preston, and Doug Skaff, D-Kanawha, to exempt certain small commercial establishments such as gas stations from having to report any above-ground storage tanks to the WVDEP under the new program. Chairman Manchin properly pointed out that the point of much of the House’s work on the bill was to remove the industry-written exemptions that were included by Gov. Earl Ray Tomblin and the Senate, telling fellow Delegates:
If we start adopting waivers, it’s a slippery slope. How many other waivers are we going to make?
And then, Delegate Justin Marcum, D-Mingo, got up right after that and tried to push another exemption amendment without — very frankly — being able to clearly explain what it would do and what its impact would be on the overall regulatory effort being proposed. Delegate Marcum insisted his intention was simply to exempt certain facilities that already hold water pollution permits from paying a second fee for registering their tanks under the new program. But it wasn’t clear his amendment did that, and it’s still not entirely clear what facilities are covered by his amendment and what are not.
Chairman Manchin again pointed out that Delegate Marcum was trying to add back in an exemption that the House had just voted to take out. Lawmakers approved the amendment anyway. Understanding the impact of a bill is less important than being able to say you’re against a company paying a fee. A highlight of the discussion of Delegate Marcum’s amendment was when Delegate Gary Howell, R-Mineral, decided he needed to get in on the discussion, but all he was able to add was to ask Marcum, “Will your amendment protect jobs?”
One of the more maddening things that continues to bog down debate on the bill is the back-and-forth over whether West Virginia American Water can or should put some other, additional types of contaminant monitoring systems at its Elk River plant. West Virginia American has argued that some of the proposals in earlier versions of the bill are too expensive, and that if such systems are going to be required, they should be required of all water providers, not just one plant here in Charleston. While their arguments for fairness make a certain amount of sense, one might also expect that West Virginia American — the biggest water provider in the state, and the one here in the state’s largest city — would instead position themselves as wanting to be ahead of the curve, leading the pack, and setting the tone for the future of water protection, by going out at this point to see what new equipment is out there and voluntarily installing it.
The other thing, though, is that lawmakers have had to rely on what West Virginia American and ORSANCO are telling them about contaminant monitoring. You would think that state agencies like the Department of Environmental Protection and the Department of Health and Human Resources would have their own expertise that could quickly inform lawmakers and help cut through some of the fog on these matters. If WVDEP and DHHR have done that on the monitoring question, I haven’t heard them and it hasn’t gotten through to lawmakers.
The House-passed version of SB 373 now goes back to the Senate, where lawmakers could — but probably won’t — simply adopt the House amendments and send the bill on to Gov. Tomblin for his signature. It certainly seems more likely that things are headed to a conference committee, and perhaps to more late-night action, where lobbyists could get yet another chance to hammer away at the better provisions of the bill, trying to add more exemptions or otherwise weaken what is already a compromise bill.
In the Senate, Senate President Jeff Kessler, D-Marshall, and Sen. John Unger, D-Berkeley, have made much of the fact that they introduced their bill — which carried the number SB 373 — the week before Gov. Tomblin’s legislation came out. Senate committees, though, quickly amended in much of the governor’s bill, including that long list of industry-proposed exemptions. The House has stripped that nonsense out, so this is the chance for Sen. Kessler to show how much he cares about the future and for Sen. Unger to again stand up for our state’s water.