Sustained Outrage

Secrecy in the W.Va. spill bill

Coal Water Pollution

Listening last night to the House of Delegates discuss the latest version of SB 373 — the legislative response to the Jan. 9 Elk River chemical spill — I was struck by House Judiciary Chairman Tim Manchin’s mention of the importance of citizen involvement in protecting our state’s drinking water supplies:

That’s one of the things we felt was critical, was to get the citizenry involved in this.

Of course, Chairman Manchin is right. The problem is, the way the bill is currently written, lawmakers are making it far harder than necessary for members of the public to actually get the sort of information they need to be part of the discussion.

The latest version of the bill contains three different and new exemptions to the state’s Freedom of Information Act. The stated purpose of those provisions, according to lawmakers, is to protect against hypothetical terrorist attacks aimed at tanks of dangerous chemicals located near our water supplies.

In one place, the current bill requires the state Department of Environmental Protection to provide each water system a compiled list of contaminants in each of the zone of critical concern near drinking water intakes. The bill explains that this “will enable those entities [the water companies] to possess a compiled list of the types, quantities, characteristics, and locations of all of the known potential contaminants within the zone of critical concern for each public water supply.” But, the language also says:

If any of the submitted information is requested to be kept confidential and good cause is found to grant the request, for reasons of security or other legitimate public interest concern, the protected information shall be redacted from public view and kept confidential, and it shall not be subject to public release in response to a Freedom of Information Act request under made under chapter twenty-nine-b of this code.

One problem there is that part about “good cause is found … for reasons of security or other legitimate public concern.”

That is a much weaker standard to meet to allow this secrecy than the one established under our state’s FOIA and many, many state Supreme Court rulings interpreting that Act.

The other problem is that line that says “any of the submitted information” can be found to deserve confidential protection. Lawmakers are making out as if they’re only trying to protect the exactly location of chemical storage tanks. This bill goes much further than that. And besides, exact locations of tanks can already be protected. We’ll get to how that works in a minute.

Another FOIA exemption created by the spill bill comes in a section that would required water utilities to consider that DEP list of contaminants when they are updating their source water protection plants. It reads like this:

The completed or updated plan for each affected plant, at a minimum, shall include the following … A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency.

And the third FOIA exemption is contained in a section that is, ironically, titled “Public access to information.”  It starts out just fine, with this language:

The public shall have access to all documents and information submitted to the agency, subject to the limitations contained in the state Freedom of Information Act, article one, chapter twenty-nine-b of this code.

But then it says:

A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management may be disclosed. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency.

If you’re thinking this is a bit of overkill, and that these provisions are confusing and perhaps even contradictory, you’re right. That’s why it’s important to remember, first of all, that our current FOIA already has 8 exemptions that cover homeland security information. They were added to the FOIA after the 2001 terrorist attacks in New York and Washington, D.C.

The other thing is this: Current federal and state law already allows companies to ensure confidential treatment of the exact locations of their chemical storage tanks. That provision is part of the federal Emergency Planning and Community Right to Know Act. Section 324 of that law clearly says that, when chemical inventories are being reported to regulators and emergency responders:

Upon request by an owner or operator of a facility subject to the requirements of section 312, the State emergency response commission and the appropriate local emergency planning committee shall withhold from disclosure under this section the location of any specific chemical required by section 312(d)(2) to be continued in an inventory form as tier II information.

So if the point here is to protect the exact location of chemical inventories, that’s already in federal law. The language in the bill adds needless secrecy provisions, weakens the standard for keeping information confidential, and broadens — beyond just specific tank location — the sorts of information that companies like Freedom Industry would be able to hide from the public. The bill passed the House last night, and now goes back to the Senate.