Sustained Outrage

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If you’ve been wondering what ever happened to that U.S. Chemical Safety Board recommendation that West Virginia create a local program to prevent chemical plant incidents, there was some action on this issue today.

During a morning meeting in Charleston, the West Virginia Public Water Supply System Study Commission unexpectedly approved the following recommendation:

… That the recommendation of the CSB be followed without redundancy using the existing rules and agencies of the state.

The commission’s recommendation will be included in its annual report to the Legislature, which is due to be completed by Dec. 15.

Some readers may recall that lawmakers created the commission as part of the measures passed after the January 2014 chemical spill at Freedom Industries, which contaminated the drinking water supply for the entire Kanawha Valley. The CSB recommendation for creation of a local chemical safety program for the Kanawha Valley and other parts of the state was first made following the 2008 explosion at Bayer CropScience in Institute.   State and local officials basically did nothing about the CSB recommendation for years, until we published this story after the Freedom spill:

Three years ago this month, a team of federal experts urged the state of West Virginia to help the Kanawha Valley create a new program to prevent hazardous chemical accidents.The U.S. Chemical Safety Board recommended the step after its extensive investigation of the August 2008 explosion and fire that killed two workers at the Bayer CropScience plant in Institute. Since then, the proposal has gone nowhere.

Even after that, and after the Legislature instructed the water study commission — created to provide some long-term oversight over efforts to protect state drinking water supplies — to review the CSB recommendation, nothing much happened on the commission’s end. For its first two annual reports, the commission punted.

It looked like it was going to go that way again, when one of the commission’s topical “workgroups” put forward this potential recommendation during this morning’s meeting (the last before the commission report is due):

Working Group 4, having reviewed the U.S. Chemical Safety Board (CSB) recommendations on the Bayer Crop Sciences incident and the Freedom Industries incident, and having reviewed the West Virginia Chemical Release Prevention Program, believes that there is existing authority under the current West Virginia statutes and programs and agencies to fulfill the recommendations made by the CSB.

Working Group 4 recommends that the Legislature  resolve to urge the governor to review with the agencies of the state the West Virginia chemical Release Prevention Program as vetted by the U.S. Chemical Safety Board and use them to identify potential gapes in authority and as a guide to assure that the state programs encompass the appropriate expertise necessary to be effective and that the recommendations of the CSB be followed without redundancy using the existing rules and agencies of the state.

Now, keep in mind, the Legislature created the commission “for the purpose of studying and reporting back” on certain subjects, including:

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.

So basically, the Workgroup 4 recommendation was that the commission — having be created to review the CSB recommendation — was simply going to recommend that the Legislature urge the governor to urge the agencies to review the matter.

Michael McCawley, a WVU professor who chaired the workgroup, indicated the recommendation was based partly on disagreement between the commission members and state agency officials about whether there was adequate authority in state law for the chemical safety program the CSB recommended:

We want to hear back from them [the agencies] about whether they believe there are gaps. We believe there is existing authority, but the agencies may believe otherwise.

Of course, the CSB in making its recommendation explained that this particular part of state law already  gave the Department of Health and Human Resources (presumably through the Bureau for Public Health) to write rules to address:

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;

During today’s full commission meeting, member Evan Hansen (a Morgantown consultant and West Virginia Rivers Coalition representative) suggested that the recommendation from Workgroup 4 was confusing — was the commission asking for more review, or was it recommending adopting the CSB’s plan?

By a unanimous vote, the commission then approved rewriting the recommendation this way:

Working Group 4, having reviewed the U.S. Chemical Safety Board (CSB) recommendations on the Bayer Crop Sciences incident and the Freedom Industries incident, and having reviewed the West Virginia Chemical Release Prevention Program, believes that there is existing authority under the current West Virginia statutes and programs and agencies to fulfill the recommendations made by the CSB.

Working Group 4 recommends that the Legislature  resolve to urge the governor to review with the agencies of the state the West Virginia chemical Release Prevention Program as vetted by the U.S. Chemical Safety Board and use them to identify potential gapes in authority and as a guide to assure that the state programs encompass the appropriate expertise necessary to be effective and that the recommendations of the CSB be followed without redundancy using the existing rules and agencies of the state.

That’s right. the bottom line recommendation now simply says that “the recommendations of the CSB [should] be followed without redundancy using the existing rules and agencies of the state.”

What exactly does it mean to use the existing rules and agencies of the state? The commission recommendation doesn’t really say. But for folks who have been pushing for a stronger chemical safety program in West Virginia, this appears to be some progress. Chemical safety and public health advocate Maya Nye told me today:

This is a positive step forward.  The program recommended by the CSB maintains a balanced approach of protecting the health of the workers and the community while supporting economic development.  In the long run, it should save the state money.