Coal Tattoo

Gov. Earl Ray Tomblin

It seems almost impossible to believe that West Virginia lawmakers have passed and sent to Gov. Earl Ray Tomblin a decent piece of legislation that will do much to remedy the many inactions (see here, here and here) that played a role in the January chemical spill that contaminated the drinking water supply for 300,000 of us.

Somehow, lawmakers held off any effort to seriously undermine the great improvements that the House made to SB 373, and they even went back on Friday night and took out an ill-conceived amendment that even sponsor Delegate Justin Marcum, D-Mingo did not even understand. Sen. John Unger, D-Berkeley, certainly nailed it when he explained what happened this way:

I think Senate Bill 373 is an example of how the system is supposed to work.

In the House, credit the leadership for working this bill extremely hard — through three different committees and multiple hearings — and especially Judiciary Chairman Tim Manchin, D-Marion, who said in a statement early Sunday morning:

While this bill is a direct response to the causes of water crisis here in Kanawha County and the regulation of above-ground storage tanks, just as importantly it puts in place source water protection plans and monitoring for the entire state.

Major parts of the bill are really simply forcing state agencies to do things they already had the ability and the information to do — such as actually look closely at what sorts of pollutant sources exist upstream from water intakes, and plan for what would happen if those sources actually reached the water supplies. It also requires DEP to more closely inspect those pollutant sources, and to create a whole new program to monitor above-ground chemical storage tanks. And — thanks in large part to Delegate Meshea Poore, D-Kanawha, the bill forces the state Bureau for Public Health to study the long-term health effects from chemical exposure from the Freedom Industries spill. Delegate Poore said:

This legislation is critically important not only to the people of my district who were so deeply affected by the spill,  but also to the well being and safety of all West Virginians. This legislation is the beginning of an extensive process to enact better protections and produce answers.

There are clearly some remaining problems with the bill. It contains language that would require only that the state consider important chemical safety recommendations from the U.S. Chemical Safety Board, stopping way short of actually mandating that state agencies actually follow the CSB’s advice. The final version contains three unnecessary exemptions to the state’s Freedom of Information Act that — if abused by state officials — could seriously hamper the ability of the public to do its part in ensuring drinking water supplies are protecting better moving forward. And lawmakers simply refused to consider the possibility that future state agencies won’t do what’s required of them by the bill (despite readily available evidence that agencies do this all time time), and allow a clear legal framework to allow citizens to go to court to force agency action.

And keep in mind that lawmakers left an awful lot of decisions up to DEP going forward. Agency officials will, for example, spell out the specific rules for chemical tank safety in regulations that DEP officials will write.

Coal Water Pollution

As WVU law professor Pat McGinley observed Saturday:

Senate Bill 373 contains provisions that, if properly administered and enforced, have the potential to provide substantial protection for public drinking water supplies. However, instead of writing clear guidelines on how the above ground storage tanks will be regulated, the legislature passed off that responsibility to the Department of Environmental Protection which is tasked with creating the specific rules by which the law will be administered. Unfortunately there is a substantial public perception, backed by facts, that the DEP is captured by the industries it is supposed to regulate. Whether DEP will create effective rules to protect public drinking water and enforce them will be watched closely by West Virginians who have little confidence in the agency and its leadership.

Still, am I the only one who is shocked that the final version of SB 373 didn’t end up loaded back up with that huge list of exemptions that was proposed in Gov. Tomblin’s bill and that made it through the Senate?

In a post-session statement late last night, Gov. Tomblin had this to say about the legislation:

Immediately following the spill, I directed my team to work with the West Virginia Department of Environmental Protection (DEP) to draft common sense legislation to help prevent this type of crisis from happening again.  Tonight, in coordination with input from our citizens, the DEP, legislative leadership and our state legislature, we passed a bill with the best interest of all West Virginians in mind.

The bill will require all above ground storage tanks in zones of critical concern be registered with the DEP and be subjected to annual inspection by the DEP and independent engineers.  In addition to developing a reasonable regulatory structure, the bill also requires the Bureau for Public Health to gather medical information to conduct long-term medical surveillance.  It will also require West Virginia American Water to install an early monitoring system at its Elk River plant and require all water utilities have a written source water protection plan in place to prepare for emergency situations—specifically the discharge of a contaminant into the water supply.

It’s worth remembering that several of these things that the governor now highlights as key measures — long-term health monitoring, early warning systems on the Elk River plant, and annual inspections by the WVDEP — were not part of Gov. Tomblin’s own proposed solutions to this problem. Gov. Tomblin proposed a far more modest approach. From the beginning, the governor’s staff, rather than focusing on creating a tough new regulatory system, publicly emphasized their worry the bill might “overrregulate” chemical storage tanks. A big part of the work lawmakers had to do was the remove all of those exemptions — the ones that the governor put in his bill after they were requested by industry lobbyists as part of an industry-only “stakeholders” meeting put together by Tomblin officials and scheduled on a Sunday afternoon in a state office building across town from the Capitol, where it was less likely any pesky citizens or environmentalists might figure out what was going on.

Yes, I’m going to mention that “stakeholders” meeting again … and probably not for the last time. It showed how, at a critical moment, when so much was on the line, the natural reaction of our top state leaders was to go off behind closed doors with the industry side — rather than doing things out in the open, where everyone could see and have their say.

I think one of the possible turning points on this bill was a mid-February meeting of House Judiciary, where a large contingent of DEP officials offered very frank answers when asked about those exemptions the governor’s office and the Senate wanted to give various industries.  There was a certain about of squirming around. But those DEP staffers also bravely explained that they didn’t really have the kind of tank standards or do the kind of tank inspections that supporters of those exemptions had made out like they did.

The day after that Judiciary meeting, DEP Secretary Randy Huffman publicly called for the bill to be strengthened, and for most of the exemptions to be taken out — and that’s what ended up happening. Given how some other major piece of legislation, concerning natural gas drilling and coal-mine safety, have been handled by the Tomblin administration, this was quite a departure. For advocates of tough regulation and strong protections for public health and the environment, that departure is a major victory.

At the same time, though, there were signs during this session that all of the lessons of the last two months haven’t been learned. There were the efforts to weaken the Future Fund bill, putting off the day when we start putting aside money to diversify our state’s economy.  There was continuing pandering on coal issues, with resolutions and bills aimed at continuing to attack the Obama administration’s efforts to reduce carbon pollution. There was little attention paid to fixing serious problems with the state’s natural gas drilling law, but much effort to help the industry be sure it has a handy way to dispose of its waste — whether local citizens like it or not.

There’s nothing wrong with everyone involved in the chemical spill bill taking a moment to pat themselves on the back. Given how West Virginia leaders generally respond to such issues, the outcome is remarkable. But before anyone takes too much credit, or thinks passage of SB 373 really puts the water crisis behind us, take a few minutes and read Gazette editor Dawn Miller’s column about West Virginia’s other crisis:

Of course, everyone has wanted the crisis to be over, to get back to normal. But – more wisely than their “leaders” – state residents don’t pretend all is well when it isn’t, or when they lack the data to make a determination. What no voter, taxpayer, ratepayer, householder, business owner or anyone else wanted was premature reassurance.

And that brings us to the other crisis. Sunday marks the two-month anniversary of the chemical spill. The next time there is a public health emergency – and there is always a next time – thousands of West Virginians will not trust their public health officials, even the diligent ones. Well-being and possibly lives may be at stake, and the professional, expert advice that the public needs and pays for will all be suspect. Their cautions, their recommendations, their prohibitions, all carry less trust than they did two months ago. This is a dangerous state of affairs.

West Virginia has a long list of challenges. If we’re really going to deal with them openly and honestly — and have a brighter future — the chemical spill bill has to be just the very beginning.