Sustained Outrage

GAO report: EPA drops the ball on drinking water

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It’s all the rage in Washington these days to talk about “EPA overreach.” But I’m wondering if a new report from the U.S. Government Accountability Office is describing something that might be best known as “EPA underreach.”

The new GAO report looks at what steps EPA has taken over the last 15 years to regulate new contaminants under the Safe Drinking Water Act. It concludes:

Systemic limitations in EPA’s implementation of requirements for determining whether additional drinking water contaminants warrant regulation have impeded the agency’s progress in assuring the public of safe drinking water.

EPA’s selection of contaminants for regulatory determination in 2003 and 2008 was driven by data availability–not consideration of public health concern. EPA does not have criteria for identifying contaminants of greatest public health concern and based most of its final determinations to not regulate 20 contaminants on the rationale of little or no occurrence of the contaminants in public water systems.

Moreover, EPA’s testing program for unregulated contaminants–which can provide key data to inform regulatory determinations–has fallen short in both the number of contaminants tested and the utility of the data provided because of management decisions and program delays. In addition, EPA has not developed policies or guidance for interpreting the amendments’ broad statutory criteria for selecting contaminants and making regulatory determinations, increasing the potential for inconsistent decision making.

A news release from congressional Democrats was a little more pointed:

Today Reps. Henry A. Waxman and Edward J. Markey and Senator Barbara Boxer released a new report by the Government Accountability Office (GAO) which found that the Environmental Protection Agency (EPA) has not made a determination to regulate any new drinking water contaminants, with one very recent exception, since 1996 when the Safe Drinking Water Act was amended. This comes at a time when there has been growing evidence about the threats to public health from unregulated drinking water contaminants.

Labor Secretary Hilda Solis — the “new sheriff” that the labor community hoped would protect American workers — has no timeline for when her Occupational Safety and Health Administration might get around to issuing a rule to deal with the dangers of combustible dust. See previous coverage of this issue here, here, here, here and here.

I asked OSHA officials during a webchat earlier this week on the agency’s regulatory agenda:

When might we expect to actually see an OSHA standard on combustible dust?

Their answer:

OSHA is not able to project an estimate for when we will publish a proposed standard on combustible dust. The next step in the rule making process is to initiate the SBREFA panel review, which is currently estimated for December.

Hilda Solis has said such a standard is “long overdue,” but so far her agency hasn’t even set a goal for when it might even propose a combustible dust standard. And OSHA seems to keep falling farther and farther behind on this … the last time they issued a regulatory agenda, the SBREFA panel was to be convened in April 2011. Now it’s December 2011 …

West Virginia Sen. President Earl Ray Tomblin, acting as governor, just finished a press conference called to announce his administration’s plan for emergency regulations governing Marcellus Shale gas drilling. Tomblin said:

This executive order is the first step in my long-term plan to ensure responsible development of Marcellus Shale. The good-paying jobs predicted with this development must include the protection of our public’s health and safety as well as that of our environment. I want to thank our citizens who have voiced their concerns about Marcellus Shale drilling and want to assure them that I recognize this emerging segment of the natural gas industry warrants my immediate attention to ensure responsible development.

The first thing worth knowing about the event is that Mr. Tomblin spent quite a bit of his introductory remarks — at an event he called to announce his plan for protecting the environment — criticizing efforts to protect the environment.  Perhaps when he’s acting as governor, Mr. Tomblin just can’t possibly pass up any opportunity to attack the U.S. Environmental Protection Agency’s efforts to limit the damaging impacts of mountaintop removal mining. He took time out from talking about Marcellus drilling to say:

… They have allowed the EPA to spent out of control. Because of their over-reaching rulemaking, the EPA is killing jobs, which is hurting the economy of America. Washington … needs to take control of the EPA before it does further damage.

Also fascinating is that the acting governor’s executive order directing WVDEP to promulgate emergency rules was made available on the website of a gas industry group’s website well before it was posted on any of the state government’s sites.

You have to wonder if citizens and environmentalists who are concerned about the industry and its political influence will find this very comforting as they review what Tomblin and the WVDEP are proposing.

Among the items that are to be included in the WVDEP’s emergency rules:

— Erosion and sediment control plans for certain drilling permits would have to be certified by a registered professional engineer. Larger sites would have to be  constructed under an engineer’s supervision;

— All well permits applications must specify the amount of water to be used in drilling and fracturing, and larger operations must submit formal “water management plans”;

— Any permit applications for drilling within a municipality or within a one-mile radius of any municipality must publish a public notice of their permit application.

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Last week, U.S. Chemical Safety Board recommended that the federal Department of Labor’s Occupational Safety and Health Administration updated its ancient standard for the safe handling of dangerous compressed gases.

In releasing its report on the fatal January 2010 phosgene leak at the DuPont Co. chemical plant in Belle, W.Va., the CSB said:

The report recommends the Occupational Safety and Health Administration (OSHA) update its compressed gas safety standard to include modern safeguards for toxic gases such as phosgene. These improved safeguards include: Secondary enclosures for units using phosgene, mechanical ventilation systems, emergency phosgene scrubbers, and automated audible alarms.

Keeping in mind that DuPont rejected the notion of using some of these sorts of improved safety practices at its DuPont plant, Board Chairman Rafael Moure-Eraso said that adoption of the recommendation to OSHA:

… Would greatly increase the safe handling of toxic gases nationally, and will protect workers from the deadly exposures.

Sounds good, right? Surely the “new sheriff” in charge of the Obama administration’s workplace safety agency would jump on this and quickly move to take every possible step to protect workers. Well, not so much, it turns out …

No action on compressed gas safety is among the latest regulatory agenda announced this week by OSHA, and judging from what little I could get out of agency officials and publicists, action doesn’t appear to be coming any time soon.

During a webchat yesterday, I asked OSHA officials about this issue:

Last week, the Chemical Safety Board recommended that OSHA updated its standard on compressed gases. Does the agency plan to do that?

Someone from OSHA (it’s not clear who it was — the agency doesn’t say exactly what staffer is answering what questions on these webchats) answered:

Ken thank you for your question. We just received the CSB comments and recommendations last week and we are currently evaluating them.

OK … but wait a second. OSHA was actually briefed by the Chemical Safety Board back in late March, and told to expect just this recommendation on compressed gas safety. So I asked Diana Petterson, a labor department publicist, about this and she responded:

CSB briefed OSHA about their draft recommendations which often change before the final recommendations are made.

But that’s not what happened in this instance, I said … given that the recommendation was pretty much what OSHA was told to expect, why couldn’t agency officials provide a better answer? Petterson told me:

The CSB briefed OSHA several months ago about their draft recommendations. As CSB draft recommendations often change between the time they are discussed with OSHA and when the final report is issued, OSHA does not conduct a full evaluation of draft recommendations prior to the issuance of the final report.

She added:

At this time, OSHA’s resources have been fully committed to the current regulatory agenda. However, as resources become available, OSHA will be evaluating additional subjects to be added to the regulatory agenda. After fully evaluating the CSB’s recommendations, we will consider this recommendation for inclusion in the regulatory agenda along with other priority hazards that would benefit from regulatory activity, taking into account available resources, severity of the hazard, the number of workers affected and the availability of non-regulatory alternatives that would provide equivalent protection.

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A new report out today from the group Global Community Monitors is raising questions about potentially harmful air pollution from large-scale oil and gas drilling operations.

Working with local citizens, the organization collected 9 air samples in communities near drilling operations in Colorado and New Mexico. Lab testing turned up 22 toxic chemicals in those samples, including four known carcinogens. According to the group:

The chemical detected ranged from 3 to 3,000 times higher than what is considered safe by state and federal agencies.

And as the group noted:

Complaints about air quality have also surfaced in other states around the country, including West Virginia, Arkansas, Pennsylvania, Texas and Wyoming … Little information exists to educate and inform citizens about the chemicals being stored, emitted into the air, ground or water in close proximity to their homes.

… Loopholes in the Clean Air Act allow major corporations to circumvent basic protections that put public health first. U.S. EPA is currently drafting new regulations to control and monitor air pollution from natural gas development. Congress is debating new legislation, such as the Bringing Reductions to Energies Air  Born Toxic Health Effects (BREATHE) Act.

Here in West Virginia, the state Environmental Council has made monitoring and regulation of air quality at drilling sites one of its priority issues for any new oil and gas law.

In today’s Gazette, Dr. Paul Nyden has details on yesterday’s rally at the Capitol, calling for a moratorium on new Marcellus drilling until new state regulations are in place to govern the practice.  In the Daily Mail, Ry Rivard reports what we first reported here on Sustained Outrage yesterday — that Senate President Earl Ray Tomblin, acting as governor, will later today announce plans for the state Department of Environmental Protection to issue a limited set of emergency rules on Marcellus drilling.

Following the failure of any Marcellus legislation during this year’s regular legislative session, Tomblin seemed happy to basically do nothing on the issue. But then, Republican gubernatorial candidate Bill Maloney last week called for more regulation on Marcellus drilling (subscription required), saying the rules were needed to ensure future investment by the industry.

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Study of drilling damage to Fernow published

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Foliar injury of trees damaged by aerial release of drilling fluids on May 29, 2008, from the B800 well. Pit containing drilling fl uids is shown in the foreground. Photo taken June 11, 2008. Photo by U.S. Forest Service.

There’s an Associated Press story out today that reports:

A U.S. Forest Service study says a gas company that legally doused a West Virginia forest with salty wastewater from a drilling operation killed ground vegetation within days and half the trees within two years.

These findings about drilling damage in the Fernow Experimental Forest were previous outlined in the Forest Service report issued back in February, covered here in Sustained Outrage and here in the Gazette’s print edition (subscription required).

The study itself appeared in the peer-reviewed Journal of Environmental Quality online back in April, but is just now hitting the July-August print edition of the journal. The journal article makes clear the damage done by spraying of drilling fluids in the forest, a practice approved in this instance by the state:

Within 7 to 10 days, overstory trees began showing similar damage symptoms, and many of them dropped their foliage., as evidenced by a large amount of green leaves on the forest floor.

In late spring 2009, 51 percent of the trees within the perimeter had no foliage. By summer 2010, 2 years after fluid application, 56 percent of the trees within the fluid application area were dead.

In addition, the group Public Employees for Environmental Responsibility — which raised questions about the Fernow project here, here and here —  issued this press release about the print edition publication of the Forest Service study:

“The explosion of shale gas drilling in the East has the potential to turn large stretches of public lands into lifeless moonscapes,” stated PEER Executive Director Jeff Ruch, noting that land disposal of fracking fluids is common and in the case of the Fernow was done pursuant to a state permit. “This study suggests that these fluids should be treated as toxic waste.”

Word just out this morning that Senate President Earl Ray Tomblin, acting as governor, plans an announcement of some sort tomorrow regarding Marcellus Shale drilling regulations.

Interestingly, here’s the wording of the press advisory from Tomblin’s office:

Gov. Earl Ray Tomblin will hold a press conference at 2:00 p.m. Tuesday, July 12, 2011 in the Governor’s Reception Room to discuss Marcellus Shale regulation. He will be joined by Legislators and leaders from the natural gas industry.

No mention of the Senate President being joined by any citizens, residents or folks who are working to ensure drilling activities across West Virginia are properly regulated.

(UPDATED:  I understand that Tomblin’s office has now invited at least one environmental group representative to attend tomorrow’s event)

But the announcement comes as a new group called West Virginia for a Moratorium on Marcellus plans a rally today in Charleston and just before tomorrow’s scheduled meeting of a legislative interim committee considering ways to come up with a bill industry will accept.

Over the weekend, the Gazette’s Alison Knezevich had this report about potential legal avenues for surface owners who are concerned about the impacts of drilling on their property.

We previously covered a series of federal court lawsuits over waste dumping from drilling sites, and Ry Rivard at the Daily Mail had this story (subscription required) about a Marion County man’s legal battle against drilling companies.

UPDATED: Tomblin is expected to announce plans by the West Virginia Department of Environmental Protection to issue emergency rules to deal with a limited set of issues regarding Marcellus drilling.

Secret meetings, July 8, 2011

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My schedule has me a little behind on checking for open meetings violations in the State Register, so we’ll go back a couple weeks today and pick up any we missed.

— The June 24, 2011, issue of the State Register included a meeting of the Department of Administration’s Design-Build Board that violated the public notice requirements of the state’s open meetings law.

— The July 1, 2011, issue of the Register included a violation of the public notice requirements by the EMS Advisory Council.

— And today’s issue of the Register contained violations by the Division of Labor’s Manufactured Housing Board and by the Raleigh County Public Defender Services Corp.

As we’ve reminded folks before, the West Virginia Open Governmental Proceedings Act requires agencies to send meeting notices to the Secretary of State in time for notices to appear in the State Register five days prior to a scheduled meeting. Every week, we list the agencies that didn’t comply, thanks to the Secretary of State’s office, which kindly marks those agencies with an asterisk in the list of meetings published each Friday in the Register.

Folks who follow these things know that one of the first things that Kanawha Valley chemical companies like to say when they have a leak is something along these lines:  “No material left the plant” … It’s as if they want us to think they’ve built invisible protective bubbles around their fencelines.

Thanks to the folks at the U.S. Chemical Safety Board, we have another concrete example of how these sorts of statements are mostly nonsense.

CSB officials used computer modeling and data from DuPont’s fenceline monitors to estimate the extent of the plume from the January 2010 phosgene leak that killed longtime plant worker Danny Fish.

Interestingly, CSB investigators didn’t really get into all of this in the press release the agency issued — so many members of the media probably missed this important aspect of the story.  And it wasn’t made all that clear in the body of the CSB’s report either. That section (see page 60 of the report) said:

Two of the three fence line analyzers recorded a maximum concentration of 0.15 and 0.27 ppm phosgene, indicating that phosgene concentrations had traveled offsite toward the Kanawha River. However, no member of the public reported phosgene exposure symptoms the day of the incident nor did the U.S. Coast Guard restrict river traffic or conduct air monitoring as it had a day prior as a result of the methyl chloride release.

Members of the media or the public had to read all the way into Appendix D (starting on page 124 of a 172-page report) to get the full story on what the CSB had learned about the extent of the potential phosgene plume from this leak:

The fence line monitors south and southwest of the phosgene shed recorded phosgene concentrations between 0 and 0.27 ppm, suggesting phosgene vapor may have traveled south of the DuPont Belle plant fence line toward the river. The ALOHA threat-zone overlay in Figure 19 (see above) displays a model of the worst-case release conditions indicating IDLH (Immediately Dangerous to Life and Health) concentrations of phosgene could have been present on the Kanawha River shortly after the release and lower concentrations could have traveled across the river. There were no reports of odors or exposure symptoms from the community on the afternoon of the phosgene release incident.

In fact, the plume map buried on page 128 of the CSB report indicates that levels across the river from the DuPont plant reached 0.2 parts per million, which is equal to the ERPG-2 concentration — the level which no one should be exposed to for more than an hour if they want to avoid potentially irreversible health impacts.

Now, honestly, it took about three follow-up questions to get CSB investigators to make all this a little clearer to media members at yesterday’s press conference. I was a little baffled as to why the CSB — an agency whose reports are usually far easier for the public to understand than any other government department I cover — didn’t want to make this all more simple for the people of the Kanawha Valley.

But at least the CSB is doing the modeling, just as they did in their investigation of the August 2008 explosion and fire that killed two workers at the Bayer CropScience plant in Institute, W.Va.

As we reported in today’s Gazette, DuPont doesn’t like the CSB’s modeling, but he company hasn’t bothered to do its own computer study to see what sort of plume it believes might have occurred back in January 2010 …

Vicki Smith from the AP has this update on the AL Solutions accident that killed three workers late last year in New Cumberland, W.Va.:

MORGANTOWN, W.Va. (AP) — A West Virginia chemical plant where three men died in a December explosion will fight federal safety violations issued against it last month.

The Occupational Safety and Health Administration received notice last week that AL Solutions in New Cumberland plans to contest the 18 violations, said spokeswoman Lenore Uddyback-Fortson. Sixteen of those violations were considered serious and one was labeled willful. Only one, involving record-keeping on injuries and illnesses, was classified as minor.

OSHA says the titanium and zirconium recycler could have prevented the Dec. 9 tragedy in the Northern Panhandle but instead exposed workers to unnecessary risks. It has proposed $154,000 in fines.

The accident remains under investigation by other agencies, including the U.S. Chemical Safety Board, and AL Solutions said Thursday it won’t comment until all those probes are complete.

The OSHA case will now go to the Occupational Safety and Health Review Commission, an independent federal agency that handles contested violations and determines penalties.

The commission will assign an administrative law judge to hear the case. After that proceeding, either side could take the ruling to a federal appellate court.

In January, the CSB’s chief investigator said metal shavings or dust were the likely fuel for the explosion, but the team was still trying to determine which form ignited and how.

The victims were processing both metals when the blast happened. Brothers Jeff Fish and James Fish, both of New Cumberland, died along with co-worker Steven Swain of Weirton.

It was the third fatal explosion at the Northern Panhandle plant in 15 years.

OSHA cited AL Solutions for using an unsafe water sprinkler system with flammable materials, saying that willful violation created an explosion hazard.

The serious violations included failure to provide a proper hydrogen gas detection system, over-pressure protection, emergency egress, personal protective equipment and hazard communication training.

AL Solutions also has a plant in Washington, Mo.