Sustained Outrage

OSHA expands chemical plant safety program

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Photo via AP by Tom Hindman, Charleston Daily Mail

The U.S. Department of Labor announced today:

The Occupational Safety and Health Administration today issued a new National Emphasis Program* (NEP) for chemical facilities to protect workers from catastrophic releases of highly hazardous chemicals.

he new NEP replaces OSHA’s 2009 pilot Chemical Facility National Emphasis Program which covered several OSHA regions around the country. The program* establishes policies and procedures for inspecting workplaces that are covered by OSHA’s process safety management (PSM) standard. The program’s inspection process includes detailed questions designed to gather facts related to PSM requirements and verification that employers’ written and implemented PSM programs are consistent. The intent of the NEP is to conduct focused inspections at facilities randomly selected from a list of worksites likely to have highly hazardous chemicals in quantities covered by the standard.

This expansion of the program was one of the recommendations made to OSHA by the U.S. Chemical Safety Board in the board’s report on the August 2008 explosion and fire that killed two workers at the Bayer CropScience plant in Institute, W.Va.

OSHA chief David Michaels said:

Far too many workers are injured and killed in preventable incidents at chemical facilities around the country. This program will enable OSHA inspectors to cover chemical facilities nationwide to ensure that all required measures are taken to protect workers.

DuPont CEO urges Obama to soften U.S. regulations

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When I first saw the press release two weeks ago from the U.S. Environmental Protection Agency, I have to admit I didn’t pay that much attention to it:

The Delaware Department of Natural Resources and Environmental Control, the US Environmental Protection Agency, and state and federal Departments of Justice have entered into a consent decree with the DuPont Corp. in which the company has agreed to pay a penalty of $500,000 for numerous violations of the DuPont Edge Moor plant site’s National Pollutant Discharge Elimination System (NPDES) permit and other state and federal regulations.

Many of the violations at the facility – which makes a white pigment from titanium used in the print and publishing industries – were pollutant discharges into the Delaware River that occurred between 2005 and 2011. All of the violations, including state and federal Clean Water Act noncompliance, are covered in the consent decree signed with DNREC and EPA. DNREC first issued a notice of violation to DuPont in April 2008 for numerous effluent discharges that exceeded permit limits and for violations of other general NPDES permit conditions that were not met.

But since then, several alert readers have passed on to me a link to this Philadelphia Inquirer piece on the situation. The story explains:

The fine and settlement comes as DuPont, which earned $3 billion in profits last year, is weighing whether to expand the Edge Moor plant or rival works in the southern U.S. and Asia. CEO Ellen Kullman (above) has met with President Obama, urging less cumbersome regulations and lower taxes to make it more attractive for her company to site more factories and jobs in the U.S. The company also says it is committed to clean water and to obeying the law.


Secret meetings, Nov. 18, 2011

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We missed last week, so we’ll run through two weeks worth of public meeting notices from The State Register.

First, last week’s edition of the Register included one meeting that violated the public notice requirements of West Virginia’s open meetings law. The agency involved was Southern West Virginia Community College’s Board of Governors Committee on Tuition and Fees. And this week’s issue of the Register contained no meetings that violated the public notice requirements.

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.

Well site during active drilling to the Marcelllus Shale formation in Upshur County, West Virginia, in 2008. Photo copyright West Virginia Surface Owners Rights Organization.

Gov. Earl Ray Tomblin has set up an interesting situation with his demand that there be consensus on a bill before he’ll call a special session to consider legislation to better regulate gas drilling in West Virginia’s vast Marcellus Shale reserves. Basically, industry lobbyists appear to be able to block even having the bill put to a vote.

So will the industry play ball, now that a joint special interim committee has come up with compromise legislation? It doesn’t look like it, unless pretty major changes are made to remove some key provisions of the measure.

We wrote previously about an October 2011 letter that the West Virginia Oil and Natural Gas Association sent to legislators about its concerns on the bill. But today, we got a copy of more recent correspondence, in which the association’s president, Robert C. Orndorff of Dominion lays it out pretty clearly:

Enacting legislation that addresses the safety and environmental concerns is important to the citizens of West Virginia, the legislators and the natural gas industry. But enacting overly burdensome or counterproductive legislation serves no legitimate public policy and, more importantly, does not serve the citizens of West Virginia.

I respectfully urge your Committee to focus on the essentials of the legislation outlined above and reject the attempts to burden the legislation with others’ wish list of issues that do not advance safety of citizens and the protection of the environment coupled with encouraging economic development through jobs and tax revenue.

Here’s what the industry group thinks legislation should do:

I am abundantly aware that the development of gas bearing shale formations in West Virginia has generated a public outcry of both legitimate and non-factual concerns.  I strongly suggest that the Legislature’s role is to address the legitimate concerns and discard the fabricated or non-factual concerns. These legitimate concerns include (1) the protection of water supplies, (2) the use and disposal of waters of the State and (3) the use, maintenance and repair of county roads for natural gas exploration and development.

And here’s what they are against:

What we should not and cannot do in a limited amount of time is to rewrite history and turn upside down well developed contractual relationships. Toward that objective, I make this plea that the Joint Select Committee make first things first and refocus its effort on addressing the important matters and leaving the efforts to re-align long standing property rights to another time or at least another legislative initiative.

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In this Thursday, Nov. 3,  2011 photo, bundles of documents to be organized and digitally scanned sit in piles at the former National Police archive in Guatemala City. Guatemala adopted a freedom of information law in 2008. In the first worldwide test of freedom of information in 2011, Guatemala was among the most responsive of 105 countries involved, confirming a request from The Associated Press in 72 hours and sending all documents in ten days. (AP Photo/Rodrigo Abd)


EDITOR’S NOTE _ More than 100 countries have legislation that _ on paper _ gives citizens the right to know what is happening in their governments. The Associated Press has tested these laws worldwide for the first time.

By Martha Mendoza, AP National Writer

Satbir Sharma’s wife is dead. His family lives in fear in rural India. His father’s left leg is shattered, leaving him on crutches for life.

Sharma’s only hope lies in a new law that gives him the right to know what is happening in the investigation of his wife’s death. Most of all, he wants to know what will happen to the village mayor, now in jail on murder charges.

He talks quietly, under his breath, because his two young sons still think their mother is sick in the hospital and will come home. He pats a tidy stack of government documents perched on a table, under the gaze of Hindu gods from pictures on the wall.

“At least,” he says sadly, “we have the truth.”



The promise is magnificent: More than 5.3 billion people in more than 100 countries now have the right — on paper — to know the truth about what their government is doing behind closed doors. Such laws have spread rapidly over the past decade, and when they work, they present a powerful way to engage citizens and expose corruption.

However, more than half the countries with such laws do not follow them, The Associated Press found in the first worldwide test of this promised freedom of information. And even when some countries do follow the law, the information unearthed can be at best useless and at worst deadly.

Right-to-know laws reflect a basic belief that information is power and belongs to the public. In a single week in January, AP reporters tested this premise by submitting questions about terrorism arrests and convictions, vetted by experts, to the European Union and the 105 countries with right-to-know laws or constitutional provisions.

AP also interviewed more than 100 experts worldwide and reviewed hundreds of studies.

Among its findings:

— Only 14 countries answered in full within their legal deadline. Another 38 countries eventually answered most questions, at least providing data.

— Newer democracies were in general more responsive than some developed ones. Guatemala confirmed the AP request in 72 hours, and sent all documents in 10 days. Turkey sent spreadsheets and data within seven days. Mexico posted responses on the Web. By comparison, Canada asked for a 200-day extension. The FBI in the United States responded six months late with a single sheet with four dates, two words and a large section blanked. Austria never responded at all.

— More than half the countries did not release anything, and three out of 10 did not even acknowledge the request. African governments led the world for ignoring requests, with no response whatsoever from 11 out of 15 countries.

— Dozens of countries adopted their laws at least in part because of financial incentives, and so are more likely to ignore them or limit their impact. China changed its access-to-information rules as a condition to joining the World Trade Organization in 2001, to boost the economy by as much as 10 percent. Beijing has since expanded the rules beyond trade matters. Pakistan adopted its 2002 ordinance in return for $1.4 billion in aid from the International Monetary Fund. Neither country responded to the AP’s test.

“Having a law that’s not being obeyed is almost worse than not having a law at all,” says Daniel Metcalf, the leading U.S. Freedom of Information authority at the Justice Department for the past 25 years, now a law professor at American University. “The entire credibility of a government is at stake.”


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UPDATED: The legislative committee on Marcellus Shale has approved the bill and asked for a special session to consider the measure.

Long-time West Virginia political leaders like Sen. Joe Manchin (above) were making much earlier this week (see here and here) about how the state needs time to get a handle on the Marcellus Shale issue and put a proper regulatory system into place, making it clear they want federal officials to pretty much mind their own business.

But on at least one crucial issue — whether the state Department of Environmental Protection has enough inspectors and other staff to do the job — West Virginia has had nearly 20 years to remedy the problem, and so far as done next to nothing. That’s the bottom line in a story we posted online last night. Headlined, State ignored previous warnings about drilling inspector shortage, the story explains:

Long before most West Virginians had ever heard the words “Marcellus Shale,” outside auditors were warning that the state’s oil and gas regulatory agency was greatly underfunded and severely understaffed.

In December 1993, a review by the Interstate Oil and Gas Compact Commission warned that lack of funding and a shortage of inspectors were among the chronic problems facing the state Department of Environmental Protection’s Office of Oil and Gas.

“The OOG does not have enough inspectors or funding to fully meet its statutory mandate,” said the 98-page review report, written by a team of regulators from other states, industry officials and environmental group representatives.

A decade later, another outside examination found that little had changed. The state oil and gas office still “does not have enough inspectors or funding to fully meet its statutory mandate,” said a 110-page report issued in January 2003.

Don Garvin, lead lobbyist for the West Virginia Environmental Council, commented at Sen. Manchin’s Senate committee field hearing, held in Charleston on Monday:

The best written rule is no good if you don’t have enforcement, if you don’t have inspectors in the field overseeing the operations.

You can read the 1993 review of West Virginia’s oil and gas regulatory program here and the follow-up review done in 2003 here.

Part of the current version of a Marcellus drilling bill pending in the Legislature is an amendment calling for a follow-up outside review or West Virginia’s program. Of course, the question right now is really whether lawmakers and Gov. Earl Ray Tomblin will take action on the inspector shortage that has been a looming problem for so many years … The Marcellus committee meets this afternoon, so stay tuned …


Are states properly regulating natural gas drilling?

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Gazette photo by Lawrence Pierce

Delegate Tim Manchin, D-Marion and co-chair of a special Marcellus Shale committee, made it pretty clear yesterday where he stands on whether the state Legislature should stop stalling action on a new natural gas drilling regulatory bill:

If the industry uses its vast arsenal of lobbyists and other means to delay or defeat a meaningful bill, you won’t have to come back here to hear about it, because I’ll be coming to Washington to ask for your intervention to protect our citizens and our beloved West Virginia hills.

Down at the state Capitol yesterday morning, lawmakers finished adding the last amendments to their Marcellus bill, as The Associated Press reported:

One aims to encourage drillers to reach voluntary agreements on compensation and land access with the owners of the surface property that would host a well. In such cases, the operator may have obtained the mineral rights through separate owners. Another amendment Monday sets qualifications for state gas field inspectors.

The AP story also reported possible objections to parts of the bill are being raised by the Tomblin administration:

Tomblin Chief of Staff Rob Alsop also said earlier that the governor shares some of the industry’s disagreements with the bill.

“There are some provisions of the bill that give us some concern,” Alsop said Sunday. “We hope to work over the next couple weeks with the co-chairs and legislative leaders to come to a resolution.”

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Sen. Joe Manchin, D-W.Va., waves to the crowd Sunday, Nov. 13, 2011 during the inauguration ceremony for West Virginia Gov. Earl Ray Tomblin at the Capitol in Charleston, W.Va. (AP Photo/Jeff Gentner)

UPDATED:  Here’s our initial web story about today’s Senate hearing, and you can watch an archived webcast and read the prepared testimony here.

West Virginia lawmakers are right now working through the last of a long list of amendments to their pending bill to regulate natural gas drilling in the Marcellus Shale. And later this morning, Sen. Joe Manchin will host a Senate committee meeting here in Charleston to hear testimony about Marcellus drilling in West Virginia. Sen. Manchin said:

This hearing is an opportunity for West Virginia to demonstrate our unique position of strength in the energy industry, as we are literally sitting on top of the tremendous potential of the Marcellus Shale. With the development of this resource, our state has a great opportunity to do two critical things at once: create jobs both now and into the future, and advance our goal of achieving energy independence within this generation.

As we reported last week (see here and here), many observers do not have much hope that state lawmakers will work out a bill that industry is willing to support — meaning it’s unlikely that newly inaugurated Gov. Earl Ray Tomblin will call a special session to try to get the bill enacted before the end of the year. Larry Messina at The Associated Press had a story over the weekend on this issue, reporting:

Two meetings this week should determine whether West Virginia lawmakers will tackle Marcellus Shale drilling rules this year, but the main players involved in the months-long quest for compromise appear as divided as ever.

A special House-Senate committee plans to debate a final handful of amendments to its draft Marcellus bill Monday. The legislators will then likely decide Wednesday whether to endorse the measure.

In his inaugural speech on Sunday, Gov. Tomblin made mention of the issue, saying:

Now, we are on the forefront of new energy sources and new technologies with the development of the Marcellus Shale.

Working with members of the Legislature, we will put permanent rules in place to provide certainty to the natural gas industry, while also protecting landowners and our environment.

And with this certainty, we will see our manufacturing sector rejuvenated by taking advantage of natural gas byproducts.

I look forward to, not just one, but hopefully two multi-billion-dollar investments, so our children can stay home, secure good paying jobs and raise their families’ right here in West Virginia.

To do this, we must work together.

But Larry reports:

Tomblin also has concerns with the bill, Chief of Staff Rob Alsop said Sunday. As an example, Alsop cited a provision addressing the casing of a gas well’s walls with cement to prevent leaks. Supporters of this language say it’s borrowed from neighboring Pennsylvania, a leader in Marcellus drilling. Echoing an industry objection, Alsop said it does not allow for evolving technology.

“Given the kind of amendments that have been passed, we do believe there will be changes that need to be done,” Alsop said.

Alsop also said that Tomblin is pleased with the committee’s progress, and hopes to resolve his concerns with legislative leaders over the next couple of weeks — if a final bill emerges.

UPDATED: And Pam Kasey at The State Journal had this story raising questions about whether parts of the Marcellus bill go far enough:

If West Virginia is to avoid a costly future environmental legacy like that left behind by coal mining and natural gas extraction of the past, bonds for horizontal wells in the Marcellus and other shales must be high enough to ensure those wells will be plugged.

Legislation currently in draft may set a sufficient level, or may not …

“A $50,000 individual well bond would cover the cost of plugging an individual Marcellus well,” said Don Garvin, legislative coordinator with the West Virginia Environmental Council and a long-time board member of STRONGER, the national nonprofit State Review of Oil and Natural Gas Environmental Regulations, which helps states improve their oil and gas regulatory programs.

“But a $250,000 blanket bond is a joke,” Garvin said.

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Industry letter outlines opposition to Marcellus bill

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When I was talking with Delegate Tim Manchin, D-Marion, earlier this week about the Marcellus Shale drilling bill (see here and here), he said one of the biggest problems for lawmakers and staff has been that industry lobbyists kept declining for months to put their concerns about specific language — or proposals for improvement — in writing.

But Delegate Manchin did mention that the West Virginia Oil and Natural Gas Association had recently sent lawmakers a short letter outlining some specific objections to language added to the legislation by a special interim committee. So I thought we’d post that letter here so everyone can give it a read. Among the industry’s objections:

— A buffer zone of 1,000 feet (as originally proposed, but reduced by the committee to 625 feet) between homes and wells “will cause very significant portions of the state to become off-limits to drilling thereby sterilizing many resources.”

— The “casing and cementing requirements” should be left to the state Department of Environmental Protection to write during rulemaking, rather that specifically set by lawmakers. The industry letter says:

It appears that the drafters of the amendment essentially borrowed the language from Pennsylvania regulations that were finalized after considering around 2,000 comments. West Virginians deserve the same opportunity to participate in a rulemaking process rather than having the Legislature serve in the rulemaking capacity.

— Requiring public notices of new permit applications to be published in the newspaper “will result in obstructing the well permit application process.”

— Proposed permit fee increases to fund additional inspectors send “a clear message to the industry that “West Virginia is an uncompetitive business environment.”

The letter concludes:

It is WVONGA’s view that the adopted and pending amendments do not advance the cause of promoting the development of our natural resources while at the same time ensuring long-term protection of the environment.

Lawmakers have postponed a scheduled Sunday committee meeting on the bill, instead setting a meeting for 8 a.m. Monday. Stay tuned …

Here’s the latest from a new report today from Common Cause:

Natural gas interests have spent more than $747 million during a 10-year campaign – stunningly successful so far – to avoid government regulation of hydraulic “fracking,” a fast-growing and environmentally risky method of tapping underground gas reserves.

A faction of the natural gas industry has directed more than $20 million to the campaigns of current members of Congress and put $726 million into lobbying aimed at shielding itself from oversight, according to the report, the third in a series of “Deep Drilling, Deep Pockets” reports produced by the non-profit government watchdog group.

“Players in this industry have pumped cash into Congress in the same way they pump toxic chemicals into underground rock formations to free trapped gas,” said Common Cause President Bob Edgar. “And as fracking for gas releases toxic chemicals into groundwater and streams, the industry’s political fracking for support is toxic to efforts for a cleaner environment and relief from our dependence on fossil fuels.”

The report explains:

… The industry’s political giving also heavily favors lawmakers who voted  in favor of the 2005 Energy Policy Act, which exempted fracking from regulation under the Safe Drinking Water Act. Current members who voted for the bill received an average of $73,433, while those who voted against the bill received an average of $10,894.

If you’re wondering, Rep. Shelley Moore Capito, R-W.Va., led our state’s delegation with $144,603 in campaign donations from the industry. Sen. Jay Rockefeller, D-W.Va., received $93,150. Both voted in favor of exempting fracking from the Safe Drinking Water Act, according to Common Cause. Rep. Nick J. Rahall, D-W.Va., received $56,850, but voted against the loophole. Sen. Manchin and Rep. McKinley were not in office at the time.