Sustained Outrage

WVDEP rule changes: Water and women’s health

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DEP comments sign

 

There was a pretty good crowd — as these things go — at last night’s West Virginia Department of Environmental Protection public hearing on water quality standards. As you can read right here in our story on the hearing, no one spoke in favor of WVDEP’s proposals to make it easier to remove drinking water protections for streams and to allow more cancer-causing chemicals to be discharged into state rivers and streams.

Among those who encouraged the public to attend and speak out against the DEP rule changes were representatives of the West Virginia Rivers Coalition, which submitted these written comments to agency officials.

At the hearing, Rivers Coalition representatives were also passing out copies of a new report called, “We are bodies of water: The Importance of safe drinking water for protecting women’s and children’s health.” The report focuses on explaining the importance of the longstanding state policy of protecting all rivers and streams as sources and potential sources of drinking water — so-called Category A — which is something that the DEP rule changes would make it easier for industry lobbyists to have changed.

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We ran a story on the front page of Sunday’s print edition that described a major change in West Virginia’s water quality standards that’s been proposed by the state Department of Environmental Protection. Here’s the way we started the story:

200dep_sign1Department of Environmental Protection officials are proposing water quality rule changes that would allow more cancer-causing chemicals to be discharged into West Virginia rivers and streams and could make it somewhat easier for industry to have drinking water protections removed for some state waterways.

Agency officials say the changes are DEP’s response to a legislative mandate to re-examine how West Virginia decides which state streams will be designated as potential drinking water sources and to make the stream-flow figures used for carcinogen limits more closely align with long-term exposure risks and U.S. Environmental Protection Agency recommendations.

But environmental groups are opposing the DEP proposals, one of which was rejected after being dubbed the “Cancer Creek” bill when it was the subject of a heated legislative battle more than two decades ago.

That proposal, which mirrors one frequently lobbied for by state industry groups, would change the stream flows used in pollution limit calculations from one using low-flow conditions to one using average flow — a move that agency officials acknowledge allows greater levels of cancer-causing chemicals.

As the story explains, the WVDEP proposal would calculate water pollution limits for cancer-causing chemicals based on an average flow figure — called the “harmonic mean” — rather than the state’s current practice of using a low-flow figure. The state currently uses a flow referred to as “7Q10,” which is the lowest seven-day consecutive flow that occurs at least once every 10 years.

You can read the whole story online here, but if you’re wondering what the real impact of the proposal would be, it’s hard to tell, at least from what WVDEP officials are saying at this point:

One thing that DEP officials acknowledge is that the switch to harmonic mean would result in permit limits that allow more cancer-causing chemicals to be discharged into West Virginia’s streams. How much more? Of what chemicals and in what rivers or streams?

DEP officials say they don’t know. A statewide review to answer those kinds of questions hasn’t been done.

Digging through public comments and agency documents about one of the last times that the state considered a switch to harmonic mean, though, might help provide some context for the proposal’s impact.

Back in 2003, the Affiliated Construction Trades Foundation — which came up with the name “cancer creek” when it fought this sort of a change as part of its opposition to the proposed Mason County pulp mill in the early 1990s — submitted this set of comments when the WVDEP was recommending a change to harmonic mean.

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200dep_sign1It’s the time of year when public hearings are held on rule changes being proposed by the West Virginia Department of Environmental Protection.

There’s a complete list of their proposals and hearing times/dates online here. But it seems important to highlight for now one specific hearing that’s coming up on Monday evening. It concerns proposed changes to the DEP Division of Air Quality’s rules for public notices for certain applications for air pollution permits.

You can read the proposal for yourself here. I’ve highlighted the portions about public notices.

In short, the proposal appears to be removing requirements that certain permit applications, when they go through public comment periods, include publication of a legal notice about the application and the comment period in local newspapers.  Instead, these notices would simply be posted on the WVDEP website.

One issue with this — and we’ll see if this receives any significant public comments — is that a notice in the local newspaper could be seen by anybody who reads that paper for their local news or obituaries or other information. To see notices on the WVDEP webpage, citizens would have to make it a point to visit that page — or if the agency also does email notices, sign up to receive those.

Of course, the idea behind publishing notices in the first place in newspapers “in general circulation” in the affected area is so that the general public — not just a specialized group that follows these issues — gets notice and have an opportunity for input.

The public hearing on this proposal, and on other air quality rule changes, is at 6 p.m. on Monday, Aug. 1, at the WVDEP office at 601 57th Street S.E., in Kanawha City.

UPDATED:  Here’s a story updating this post with information from DEP and from this evening’s public hearing.

About that Antero spill …

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DEP Photo Antero Spill Report

 

Readers may recall a post a couple of weeks ago about a West Virginia Department of Environmental Protection settlement with Antero Resources about a series of spills at the company’s operations (See WVDEP probe of Antero spills finds … more spills).

Well, a coalition of citizen groups — including the West Virginia Rivers Coalition, West Virginia Citizen Action Group and the West Virginia Surface Owners Rights Organization have submitted comments to WVDEP about this deal. Here’s some of what they said:

This enforcement action sets a bad precedent by signaling to irresponsible drilling companies that non-compliance is cheaper than compliance. Antero’s degree of non-compliance reinforces the perspective that drilling companies can get away with violating permit requirements and in fact shirk the permitting process completely with minimal repercussions. WVDEP must hold the company accountable for their blatant disregard for the law, implement stricter enforcement actions, and provide consequences that deter non-compliance rather than allowing drilling companies to escape compliance with a minimal financial penalty.

You can read the full comment letter here.

 

freedom aerial

Commercial Photography Services of West Virginia

U.S. District Judge John T. Copenhaver Jr. just issued an interesting ruling in the pending class-action case against West Virginia American Water Co. and Eastman Chemical over the water crisis that followed the January 2014 Elk River chemical spill.

In short, Judge Copenhaver wants both sides to submit additional legal briefs to address the role of Eastman Chemical — which sold MCHM to Freedom Industries — in the water crisis case. Plaintiffs in the case argue that Eastman violated the federal Toxic Substances Control Act, by not properly testing the chemical or warning buyers or the public about potential health impacts, or about possible safety concerns related to the type of storage tanks Freedom used.

Specifically, the judge says:

… The parties should address the facts supporting a conclusion that plaintiffs have suffered an injury, fairly traceable to Eastman’s alleged violation of the Act, which will be redressed by a favorable decision of this court.

Briefing should also consider whether Eastman’s alleged noncompliance with the Act constitutes a “real and immediate” threat of injury supporting injunctive relief.

The additional legal brief from the plaintiffs is due Aug. 2, with any Eastman response due by Aug. 9. You can read the judge’s order here.

 

 

PSC continues to narrow chemical spill inquiry

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West Virginia American Water Company’s request to further delay the state Public Service Commission’s chemical spill investigation wasn’t the only new filing in the last few days in that commission case. Also just made public is a new PSC order, which indicates clearly again the commission’s intent on keeping this inquiry as narrow as possible.

The new order, posted here, rejects another effort by the group Advocates for a Safe Water System to reopen discovery — the process of legal investigation in the case — prior to the currently schedule PSC hearings in mid-November.

Among other things, the Advocates hoped to reopen discovery so they could pursue more answers to questions raised by recent disclosures in the federal court case over the water crisis — including some remarkable documents that we’ve covered in the Gazette-Mail about the water company’s decision not to close its Elk River drinking water intake in the hours after the spill.

The PSC, though, wasn’t having any of it:

The fact that the parties to this general investigation and the parties to the federal cases examined some of the same subject matter but chose to develop the evidence differently, is largely reflective of the different roles of the two tribunals and the different legal standards governing the respective proceedings. Thus, while ASWS may utilize pertinent information from any source (including the federal cases) for any proper purpose during the evidentiary hearing in this proceeding, the fact that information developed outside this investigation may not be identical to what the parties developed here simply does not justify a wholesale re-opening of discovery, on the grounds that it is “new information” or otherwise.

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water intake

There’s a new filing out this morning in the state Public Service Commission’s general investigation of the January 2014 Freedom Industries chemical spill and the water crisis that followed.

In the new filing, posted here, lawyers for West Virginia American Water Co. are asking the PSC to again delay the commission’s formal hearing into the water company’s handling of the crisis.

Basically, water company lawyers are pointing out that the current PSC hearing dates — Nov. 15-17, 2016 — create a pretty serious conflict with the scheduled start of trial in the “Good case” — the water crisis class-action suit pending in federal court. U.S. District Judge John T. Copenhaver has that trial set to begin on Oct. 25.

The water company lawyers explain:

The Company believes that holding the GI evidentiary hearing during the Good trial will be virtually impossible for the Company and its witnesses to manage, and at the very least will impair and prejudice the Company’s ability to participate attentively and fully in both proceedings. The timing overlap is complete, and extends not only to the November 15-17 evidentiary hearing, which should occur during the fourth week of the Good trial, but to the October 28 pre-trial conference in the GI, at which pre-hearing motions presumably will be argued. The overlap also extends to the deadline for rebuttal testimony on September 1, which will compete for many of the same witness and lawyer resources already committed to preparing for the federal trial.

They outline scheduling concerns for both West Virginia American witnesses — including company President Jeff McIntyre — and attorneys, and conclude:

These actual scheduling conflicts will adversely affect the Company’s participation in both cases to its detriment and prejudice, and they constitute good cause to move the remainder of the GI procedural schedule into 201 7. The Commission should acknowledge the demanding federal court processes facing the Company and make reasonable accommodations to minimize the impact of scheduling constraints. There is no deadline for the Commission’s decision in the GI, and none of the other parties is likely to be prejudiced by an extension of the procedural schedule into 2017.

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WVDEP probe of Antero spill finds … more spills

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DEP Photo Antero Spill Report

Photo from WVDEP

Back in December 2014, inspectors from the West Virginia Department of Environmental Protection went to Harrison County to check out a reported spill at a fracking wastewater processing facility operated by Antero Resources. The company had reported that the spill was contained and that cleanup was complete.

But when WVDEP got there, here’s what they found:

During the inspection, however, WVDEP personnel observed and documented that the reported spill from a leak in the frac tank was in progress, cleanup was not completed, and the wastewater was leaking outside of the dedicated container system.

What’s more:

It was also noted during the inspection that a second source of spillage (Spill Two) was occurring near the western footprint of the Water Process Facility near a small unnamed tributary of Limestone Run, and the soil in the area was dark and had a petroleum odor.

Agency officials said that lab results of a soil sample taken on the eastern bank of the stream (the side where the spill occurred) revealed “elevated levels” of total chloride, total strontium, total barium, and diesel range organics, as compared to a sample on the opposite bank of the stream.

That’s all according to a recent “Consent Order” that Antero has agreed to and that WVDEP officials have released for public comment.

And there’s more … In a follow-up inspection two days later, WVDEP officials:

… Observed that, in addition to the two spills observed and documented during the December 16, 2014, inspection, another spill (Spill Three) had occurred. Further investigation revealed that this spill had not been reported. WVDEP personnel observed another spill (Spill Four) in an area down gradient of the offload manifold covered with straw. Further investigation revealed that a tank truck had spilled its contents during off-loading activities, a spill containment system had not been deployed, the contents had migrated off the pad and onto the ground, straw had been deployed to soak up the contents, the soil was stained black, and the spill had not been reported.

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EPA assurances on Dimock, Pa., water questioned

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Gas Drilling Dimock

Protesters stand in front of the Academy of Natural Sciences in Philadelphia before an appearance by Environmental Protection Agency then-(EPA) Administrator Lisa Jackson Friday Jan. 13, 2012.  Residents of the small northeastern Pennsylvania town of Dimock,  at the center of the political fight over natural gas drilling, joined environmental activists from elsewhere to rally Friday outside a conference on urban environmental issues.   (AP Photo/Jacqueline Larma)

With all of the aggressive public relations from all sides — and the flurry of conflicting statements in political campaigns — it is certainly becoming more and more difficult for the public to understand the ongoing discussion of natural gas drilling’s environmental and economic impacts.

Recall, for example, how the industry sought (and EPA really aided and abetted) to paint a federal report as proof that drilling is “safe,” when actually the report found nothing of the kind.

Thankfully, there are some great journalists out there who continue to work on these stories and cutting through the conflicting claims. For several years, the best among them has been Abrahm Lustgarten of ProPublica, whose work on the issue is archived here.

Today, we have another important story from Abrahm, “Federal Report Appears to Undercut EPA Assurances on Water Safety in Pennsylvania,” which digs again into the issue of drilling’s impacts on the drinking water in Dimock, Pa.:

Since 2009 the people of Dimock, Pennsylvania, have insisted that, as natural gas companies drilled into their hillsides, shaking and fracturing their ground, their water had become undrinkable. It turned a milky brown, with percolating bubbles of explosive methane gas. People said it made them sick.

Their stories — told first through an investigation into the safety of gas drilling by ProPublica — turned Dimock into an epicenter of what would evolve into a national debate about natural gas energy and the dangers of the process of “fracking,” or shattering layers of bedrock in order to release trapped natural gas.

But the last word about the quality of Dimock’s water came from assurances in a 2012 statement from the U.S. Environmental Protection Agency — the federal department charged with safeguarding the Americans’ drinking water. The agency declared that the water coming out of Dimock’s taps did not require emergency action, such as a federal cleanup. The agency’s stance was widely interpreted to mean the water was safe.

Now another federal agency charged with protecting public health has analyzed the same set of water samples, and determined that is not the case.

The finding, released May 24 from the Agency for Toxic Substances and Disease Registry, a part of the Centers for Disease Control and Prevention, warns that a list of contaminants the EPA had previously identified were indeed dangerous for people to consume. The report found that the wells of 27 Dimock homes contain, to varying degrees, high levels of lead, cadmium, arsenic, and copper sufficient to pose ahealth risk. It also warned of a mysterious compound called 4-chlorophenyl phenyl ether, a substance for which the agency could not even evaluate the risk, and noted that in earlier water samples non-natural pollutants including acetone, toluene and chloroform were detected . Those contaminants are known to be dangerous, but they registered at such low concentrations that their health effects could not easily be evaluated. The water in 17 homes also contained enough flammable gas so as to risk an explosion.

Read the whole thing here.

 

 

 

Public ranks water safety concerns high

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There’s a new survey out from the Kaiser Family Foundation that West Virginia readers may find interesting:

In the wake of the lead crisis affecting drinking water in Flint, Mich., the public now ranks contaminated drinking water among the most serious national health issues, trailing cancer, according to the April Kaiser Health Tracking Poll.

When asked about a series of health issues facing the country, more than a third (35%) identify contaminated drinking water as “extremely serious,” behind cancer (43%) and similar to heroin abuse (35%)  and ahead of major diseases such as heart disease ( 27%) and diabetes (31%).

Overall, women are less confident in the government’s ability to ensure the safety of public services than men are. Three-fourths of women (74%) are not very confident in their state’s ability to ensure the safety of their water, compared to two thirds (66%) of men. Similar gender differences exist on the questions about sewage and electrical services.

Most Americans (70%) say that this month they have been closely following news about unsafe lead levels in Flint’s water, up from March (63%).  More report closely following the terrorist attacks in Brussels and other conflicts involving ISIS (80%) and the 2016 presidential campaign (77%), while slightly fewer say they were closely following news about the Zika outbreak (61%).

Fielded amid news reports about government officials facing charges related to Flint’s contaminated water supply, the poll finds larger shares of the public rating their state government’s efforts to protect the water supply as either “excellent”  (17%) or “good” (37%) than “fair” (31%) or “poor” (14%).  The public rates the federal government less favorably, with more saying it’s doing a “fair” (36%) or “poor” (26%) job than saying it’s doing an “excellent” (7%) or “good” (29%) job.

Designed and analyzed by public opinion researchers at the Kaiser Family Foundation, the poll was conducted from April 12-19 among a nationally representative random digit dial telephone sample of 1,201 adults. Interviews were conducted in English and Spanish by landline (420) and cell phone (781). The margin of sampling error is plus or minus 3 percentage points for the full sample. For results based on subgroups, the margin of sampling error may be higher.