Sustained Outrage


We’re still waiting for the likely signing by Gov. Earl Ray Tomblin of SB 373, the legislation that grew out of last month’s Elk River chemical spill.

In the last few days of the session, we wrote about what was going on with a provision of the bill to require further state study of the U.S. Chemical Safety Board’s recommendation for a new West Virginia chemical accident prevention program. The program, as outlined by the CSB after two different fatal chemical plant accidents in the Kanawha Valley (see here and here), Kanawha-Charleston Health Department officials would run the program under existing legal authority of the state Department of Health and Human Resources.

As written, SB 373 mentions the CSB recommendation as among the things that a new Public Water Supply System Commission must consider, saying the commission must conduct:

A review and consideration of the recommendations of the U. S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008.

I was thinking about this language — merely mandating that someone in West Virginia actually take a closer look at the CSB’s recommendation, not that they actually do anything to implement it — as I read a new court filing from the state DHHR. The filing came earlier this week, in response to a citizen legal action about the Elk River spill, seeking to have the state Supreme Court force DHHR and the state Department of Environmental Protection to do their jobs more effectively.

DHHR lawyers seem more than a little upset that the citizens who filed this legal action — citing the wording of a Gazette headline — alleged that the DHHR and other top state officials have basically “ignored” the CSB recommendation. Here’s what DHHR lawyers wrote:

Petitioners blame the DHHR respondents for ‘ignoring recommendations from the Chemical Safety Board in 2011 regarding the potential prevention of future chemical incidents following the tragic 2008 chemical explosion in South Charleston. Petitioners cite a January 2014 newspaper article for the proposition that “the secretary of the DHHR reported that neither it, nor DEP, would follow the CSB recommendation … That article reports that the then-DHHR Secretary, Michael Lewis, stated to the CSB that his agency did not ‘have the expertise in-house to draft the appropriate legislation that would be needed to develop the type of program suggested in your report.’

As the statement from former Secretary Lewis shows, the decision to implement the CSB recommendations was not solely within the DHHR Respondents’ discretion, as Petitioners  suggested, but would have instead required legislative action. In fact, following the CSB recommendations, DHHR continued efforts to implement the recommended chemical safety measures. For example, on April 12, 2013, an email from then-DHHR Secretary Rocco Fucillo recognized that DHHR and [DEP] had engaged in ‘considerable discussion about the logistics and feasibility of establishing such a program.’

Then-Secretary Fucillo explained that ‘since DHHR has neither the capacity, resources, nor expertise to undertake such a program, and because several other state, federal and local agencies are also recommended to take action (and in fact have some responsibility in this area), we believe the appropriate course of action would be a legislative study on the need for a program of this nature. Attached to the email was a draft resolution that DHHR intended to introduce during the 2014 legislative session.’

And here’s the kicker:

…It is thus a gross mischaracterization for Petitioners to suggest that the DHHR Respondents — professionals who diligently advocate for the health and well-being of West Virginians — would “ignore” any safety recommendation from federal regulators.

OK. First of all, the 2008 explosion that led to the CSB recommendation happened in Institute, not South Charleston.

Coal Water Pollution

Next, it’s not at all clear that the DHHR doesn’t have authority to do what the CSB has recommended.  State law clearly gives DHHR the authority to write rules to regulate:

Occupational and industrial health hazards, the sanitary conditions of streams, sources of water supply, sewerage facilities and plumbing systems and the qualifications of personnel connected with any of those facilities, without regard to whether the supplies or systems are publicly or privately owned; and the design of all water systems, plumbing systems, sewerage systems, sewage treatment plants, excreta disposal methods and swimming pools in this state, whether publicly or privately owned;

If that language regarding “occupational and industrial health hazards” doesn’t mean rules to prevent chemical plant explosions and toxic material leaks, what does it mean? Isn’t part of what got West Virginia here in the first place — where a chemical tank leak contaminates the water supply for 300,000 people — having agencies and their lawyers take incredibly narrow views of their authority over dangerous and polluting industries?

Then there’s the actual language on the documents referred to by DHHR’s lawyers. It is far from clear that this legislative study resolution would have been introduced during the 2014 session — or that this issue would have been discussed at all — if that tank of Crude MCHM hadn’t sprung a leak at Freedom Industries.

If you read closely the documents cited by DHHR (see page 61 of their document appendix, filed with the Supreme Court), what you’ll see is that then-Secretary Fucillo was still trying to get DEP to sign on to the study proposal, and then still needed to get approval from Gov. Earl Ray Tomblin before trying to get the Legislature to approve it.  DHHR lawyers didn’t give the Supreme Court any records to suggest that either of those things had happened.

Back in early January, when I was working on the story that’s cited in the citizen group legal action, I couldn’t get anybody from the DHHR or the governor’s office to comment on the CSB recommendation or what the state had — or hadn’t — done about it. My story reported:

… Neither the governor’s office nor the DHHR have responded to a specific question from the Gazette about whether they would move to implement the CSB’s recommendation.

After my story was published, the DHHR provided these records about the agency’s consideration of the CSB recommendation.

Like the DHHR’s filing with the Supreme Court, there’s nothing in there that shows the administration had finalized a plan to move forward and implement the CSB recommendation.

There are, however, records that show, among other things, that the DHHR complained that the CSB’s proposal would cost too much money or that other agencies — OSHA or DEP, for example — are in a better position to regulate chemical hazards. And, there are records that show that the idea of seeking legislative approval for a study of the issue go back to at least June 2011 — nearly three years ago.

So, bottom line is it took the huge spill at Freedom Industries — and the ongoing water crisis — to get lawmakers to move on this matter even a little bit, to actually study the CSB recommendation.  And the DHHR’s response now is to act outraged that anyone criticized them for not actually acting before.

This morning, I forwarded a copy of SB 373 to the Chemical Safety Board, and asked agency spokeswoman Hillary Cohen what the board thought of the Legislature’s action in that bill. Here’s what she said:

Our recommendations department with input from our investigative staff will be following the actions of the legislature to determine if they fulfill the intended actions of the CSB’s recommendations.