Sustained Outrage

About that new EPA ” Clean Water Rule” …

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Gina McCarthy

U.S. Environmental Protection Agency Administrator Gina McCarthy, left, takes questions from the audience after delivering a speech at Harvard Law School in Cambridge, Mass., Tuesday, July 30, 2013. (AP Photo/Steven Senne)

Yesterday, I posted a brief item about the release by the U.S. Environmental Protection Agency of its new “Clean Water Rule” in which I noted that my inbox was filling up with responses about the EPA action.

The responses were pretty predictable, really. Just about every environmental group you could possibly name jumped out there to cheer lead about it. See, for example, this statement from a coalition of citizen groups:

Today the Obama administration closed loopholes that left the drinking water sources for more than 1 in 3 Americans at risk of pollution and destruction with the release of its long-awaited Clean Water Rule. A number of environmental, wildlife, and sportsmen groups praised the rule, which ensures Clean Water Act protections for streams and wetlands across the country, but warned that there are multiple efforts underway in Congress to weaken, undermine, or stop the rule completely.

On the other side of things, all of the industry groups I heard from were complaining strongly about the EPA rule. Here’s the National Mining Association:

We remain deeply concerned that the promised clarity from this rule comes at the steep price of more federal interference with state, local and private land use decisions. The U.S. federal permitting process is among the slowest, most costly and inefficient systems in the world. This rule faces a high hurdle in convincing us that the permitting process will improve now that only the most tenuous connections form the basis for imposing federal requirements on top of existing state protections.

West Virginia political leaders were also pretty predictable. Most said something along the lines of what Sen. Joe Manchin put in his prepared statement:

It is completely unreasonable that our country’s ditches, puddles and other un-navigable waters be subjected to the same regulations as our greatest lakes and rivers, and implementing this rule will certainly have a significant impact on West Virginia’s economy, hindering businesses, manufacturing and energy production.

Pretty much, most of the media coverage I read (see here, here and here for example), confined their story to the narrative that EPA and its friends on the environmental community love the rule, while business and industry — and their friends on Congress — hate it.

But then I came across this statement, issued by the Water Keeper Alliance and the Center for Biological Diversity:

The “Clean Water Rule” issued today by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers reduces the agencies’ jurisdiction over waters that have been covered under the Clean Water Act since the 1970s. The final rule fails to protect streams and rivers that have historically been protected under the Clean Water Act, exempting industrial-scale livestock facilities, and allowing streams and rivers to be impounded or filled with toxic coal ash and other waste.

The preamble to the rule states: “The scope of jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.”

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MVP MapWest Virginians who are following pipeline proposal issues might be interested in the latest news out of Kentucky, from WFPL:

The Kentucky Court of Appeals on Friday upheld a lower court’s decision that a natural gas liquids pipeline would not have the right of eminent domain in the commonwealth. The unanimous decision means that only utilities regulated by the Public Service Commission can invoke eminent domain in Kentucky.

Back in March, some residents who are concerned about the Mountain Valley Pipeline filed lawsuits in state court to stop developers of that project from surveying their property without permission. Those cases have been kicked into federal court, and the pipeline developer has also sued residents.

And now, lawyers for the residents are requesting that U.S. District Judge Irene Berger ask the state Supreme Court to provide its guidance on a key legal issue in the case:

Whether, under West Virginia Code § 54-1-1 et seq., a proposed natural gas pipeline is “for public use,” as that term is used in W. Va. Code § 54-1-2(a)(3), when consumers of natural gas in West Virginia will not be served with gas from that pipeline, under reasonable and proper regulations, along the entire line traversed, and for reasonable fixed rates.

Gina McCarthy

In this Nov. 19, 2014 file photo, EPA Administrator Gina McCarthy speaks in Washington. The Obama administration issued new rules Wednesday to protect the nation’s drinking water and clarify which smaller streams, tributaries and wetlands are covered by anti-pollution and development provisions of the Clean Water Act. McCarthy said the rule will only affect waters that have a “direct and significant” connection to larger bodies of water downstream that are already protected. (AP Photo/Manuel Balce Ceneta, File)

My inbox is quickly filling up today with statements from the environmental organizations, all eager to get quoted saying something nice about the latest action by the Obama administration’s U.S. Environmental Protection Agency. Here’s what EPA said this morning in a press release:

In an historic step for the protection of clean water, the U.S. Environmental Protection Agency and the U.S. Army finalized the Clean Water Rule today to clearly protect from pollution and degredation the streams and wetlands that form the foundation of the nation’s water resources.

The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.

The actual language of the final rule is here, and the new definition of “waters of the United States” is here.  There’s a Congressional Research Service report about the issue available here (thanks to the Federation of American Scientists), and a setup story from The New York Times has more background.

Latest DuPont citation mirrors Belle violation

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Gazette photo by Chris Dorst

The inspection results from the U.S. Occupational Safety and Health Administration are in regarding the terrible poison gas leak that killed four workers at DuPont Co.’s plant in LaPorte, Texas, last November.  Here’s the bottom line from the OSHA press release:

Four workers killed by a lethal gas in November 2014 would be alive today had their employer, DuPont, taken steps to protect them, a U.S. Department of Labor investigation found.

The department’s Occupational Safety and Health Administration today cited DuPont for 11 safety violations and identified scores of safety upgrades the company must undertake to prevent future accidents at its Lannate/API manufacturing building in La Porte. The company employs 313 workers who manufacture crop protection materials and chemicals there.

“Four people lost their lives and their families lost loved ones because DuPont did not have proper safety procedures in place,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Had the company assessed the dangers involved, or trained their employees on what to do if the ventilation system stopped working, they might have had a chance.”

OSHA continued:

The fatal incident occurred as one worker was overwhelmed when methyl mercaptan gas was unexpectedly released when she opened a drain on a methyl mercaptan vent line. Two co-workers who came to her aid were also overcome. None of the three wore protective respirators. A fourth co-worker — the brother of one of the fallen men — attempted a rescue, but was unsuccessful. All four people died in the building.

Methyl mercaptan is a colorless gas with a strong odor. It is used in pesticides, jet fuels and plastics. At dangerous levels of exposure, the gas depresses the central nervous system and affects the respiratory center, producing death by respiratory paralysis.

Among the citations issued by federal inspectors was one for a “repeat violation” for allegedly “not training employees on using the building’s ventilation system and other safety procedures, such as how to respond if the fans stopped working.” OSHA noted, without further explanation:

In July 2010, DuPont was cited for a similar violation.

Kanawha Valley residents may remember that similar violation. It was issued to DuPont’s Belle plant following a series of incidents in January 2010 that left one worker dead.

In the Belle incident, the OSHA citation in question stated:

Small Lots Manufacturing (SLM) Unit, Phosgene Shed: Employees working in the SLM Unit were not trained to recognize that leaving liquid phosgene in a non-vented flexible transfer hose for an extended period of time could result in the rupture of the flexible hose due to the thermal expansion of the liquid phosgene as determined on January 25, 2010.

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New study warns of MCHM toxicity

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There’s a new study out this week that residents of the Kanawha Valley and surrounding region will want to know about.  It was published online Monday in the peer-reviewed journal Environmental Science and Technology and is called Toxicity Assessment of 4-Methyl-1-cyclohexanemethanol and Its Metabolites in Response to a Recent Chemical Spill in West Virginia, USA.

Here’s the abstract:

The large-scale chemical spill on January 9, 2014 from coal processing and cleaning storage tanks of Freedom Industries in Charleston affected the drinking water supply to 300,000 people in Charleston, West Virginia metropolitan, while the short-term and long-term health impacts remain largely unknown and need to be assessed and monitored. There is a lack of publically available toxicological information for the main contaminant 4-methyl-1-cyclohexanemethanol (4-MCHM). Particularly, little is known about 4-MCHM metabolites and their toxicity. This study reports timely and original results of the mechanistic toxicity assessment of 4-MCHM and its metabolites via a newly developed quantitative toxicogenomics approach, employing proteomics analysis in yeast cells and transcriptional analysis in human cells. These results suggested that, although 4-MCHM is considered only moderately toxic based on the previous limited acute toxicity evaluation, 4-MCHM metabolites were likely more toxic than 4-MCHM in both yeast and human cells, with different toxicity profiles and potential mechanisms. In the yeast library, 4-MCHM mainly induced chemical stress related to transmembrane transport and transporter activity, while 4-MCHM metabolites of S9 mainly induced oxidative stress related to antioxidant activity and oxidoreductase activity. With human A549 cells, 4-MCHM mainly induced DNA damage-related biomarkers, which indicates that 4-MCHM is related to genotoxicity due to its DNA damage effect on human cells and therefore warrants further chronic carcinogenesis evaluation.

And here’s the conclusion:

… This study revealed different toxicity and potential mechanisms of 4-MCHM and its metabolites by S9 in yeast and human cells (A549). These results suggested that, although 4-MCHM is considered only moderately toxic based on previous limited acute toxicity evaluation, its metabolites may be more toxic than 4-MCHM and are more relevant to human exposure. Our study at the molecular level revealed some subcytotoxic molecular mechanisms such as DNA damage potential, which indicates that 4-MCHM is related to carcinogenesis and reproductive toxicity due to its DNA damage effect on human cells. Our results suggested that long-term medical monitoring should be considered for the population. It may also provide insights into potential long-term aquatic toxicity issues. The toxicogenomics-based molecular toxicity screening assay employed in this study provides timely information regarding the underlying mechanisms of toxic action of 4-MCHM and its metabolites, especially related to low-dose and chronic exposures, which makes it a useful tool for public health protection and health monitoring needs.

Mark Welch at Freedom April 2015

Freedom Industries Chief Restructuring Officer Mark Welch is shown during an early April tour of the site. Photo by Ken Ward Jr.

Earlier this week, the state Department of Environmental Protection blasted Freedom Industries, harshly criticizing the company’s current leadership — Chief Restructuring Officer Mark Welch and attorney Mark Freedlander — for their handling of the Freedom bankruptcy and company proposals for cleaning up the site of the January 2014 Elk River chemical spill.

This morning, Welch responded with this new court filing:

Welch has some strong words back at the DEP regarding the agency’s comments about Freedom’s efforts to come up with a viable cleanup plan under the agency’s Voluntary Remediation Program:

Saying “NO” to proposals made by a VRP participant under the VRP is easy. It allows for plausible deniability and blame if the clean-up project were not to be successfully completed by the VRP participant.

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Good news: The latest “State of the Air” report

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There’s some good news for Kanawha Valley residents in the American Lung Association’s latest “State of the Air” annual report:

The American Lung Association’s “State of the Air 2015” report released today finds the 3-state, 12-county Charleston-Huntington-Ashland, WV-OH-KY metropolitan area improved to its best-ever performance for two of the three measures of air pollution the report tracks.  Compared with last year’s report, its ranking among metro areas nationwide also improved in those two categories: fine particle pollution measured on a short-term (daily) and long-term (year-round) basis.

According to the 2015 report, based on data for the three-year period of 2011-2013, all monitored counties in the Charleston-Huntington-Ashland metro area earned “A” grades for posting zero days of unhealthy levels of particle pollution, placing the metro area onto the American Lung Association’s “Cleanest Cities” list for this pollutant.

The metro area’s rank for this measure improved slightly from 96th to 98th worst in the nation.  In addition to Cabell County, WV, which was promoted to its first “A” after three straight years of “B’s,” Kanawha County, WV, Boyd County, KY, and Lawrence and Scioto Counties, OH, all repeated last year’s “A” grades.

Citizens urge caution on Freedom Industries cleanup

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Mark Welch, chief restructuring officer of Freedom Industries (center), briefs Department of Environmental Protection officials on the site during an inspection on April 3. Photo by Ken Ward Jr.

If you read the reports that Freedom Industries’ Chief Restructuring Officer Mark Welch files with U.S. Bankruptcy Judge Ronald Pearson, you would think that the remediation of the site of the January 2014 Elk River chemical spill is about wrapped up. But to hear the state Department of Environmental Protection tell the story, that’s far from true — DEP says it’s still waiting to see test results on soil and groundwater at the site, and that there’s a long road yet before the project completes work under the state’s “voluntary” remediation program.

We detailed the latest twist in this somewhat confusing story in Sunday’s Gazette-Mail:

Freedom Industries officials are pressing West Virginia regulators for speedy approval of the company’s plan to complete a voluntary cleanup of the site of the January 2014 chemical leak that contaminated the drinking water for hundreds of thousands of residents in the Kanawha Valley and surrounding communities.

… Welch told Pearson in his new report that the company had submitted a work plan earlier last week and that Freedom could complete the remediation contemplated within two weeks. Welch said the DEP had agreed to “expeditiously review and respond to the work plan.”

Welch said Freedom has dug up 600 cubic yards of contaminated soil and would, under its proposed work plan, dig up another 200 cubic yards of soil from areas where MCHM was stored or handled. He said the company would fill in with clean soil a water-runoff collection trench where sampling has continued to pick up the presence of MCHM. A new sediment-control pond would be built along the Elk River that could be used, at least temporarily, for continued sampling.

Completion of this work, Welch told the court, would mean “there is no risk of further MCHM leaching into the Elk River.”

This morning, the citizen group People Concerned about Chemical Safety, responded to that story, with a press release that urged DEP to “prevent cutting corners” on the Freedom cleanup project:

Recent tests, however, performed by U.S. Geological Survey, Virginia Tech and University of Memphis leave more questions on the toxicity of the spilled material.

Past studies assume the spilled material to have the same fate properties regardless of temperature. However, a recent report from Virginia Tech and University of Memphis indicates differing fate properties proving the previous hypothesis false. This indicates the potential for exposure concentrations to vary

The U.S. Geological Survey recently determined that a form of methyl 4-methylcyclohexanecarboxylate (or MMCHC), was identified as another component of the spilled material and that it “likely contributed to the tap water odor complaints of Charleston residents.” No toxicological data is available for this chemical and the CDC has never established a screening level for this chemical.

What is clear from these recent findings is that the data does not yet exist to properly determine the risk at the Freedom cleanup site. In light of these findings, PCACS is urging DEP to ensure additional tests are performed to properly characterize site risk.

Among other things, People Concerned noted that DEP could seek to have money from criminal restitution payments from Freedom executives — four of whom have pleaded guilty in federal court — set aside for help with the site cleanup. Also, the group noted that DEP is accepting public comments on the Freedom cleanup via email at DEPVRPComments@wv.gov.

 

 

After action: Learning from W.Va.’s water crisis

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In a lot of ways, the “After Action Review” made public last week by the Tomblin administration was an amazing document.  Click here to read the whole thing or here to download the main body summary of the findings.

Writing in our news story about the report, I called it the state’s “most frank assessment” to date of government’s performance in responding to the Freedom Industries chemical leak and the water crisis that followed. Among the admissions:

— The state “struggled at times” to effectively communicate information to the public through the news media. News conferences occurred with little notice, and messages were “lost amid confusing or ambiguous statements.” The report noted that “scientific information ought to be conveyed in an easily understandable manner.”

Earl Ray Tomblin— Government officials “should have visited individuals and businesses in the affected area to help restore calm and exhibit empathy.”

— Recalling an industry-only “stakeholders” meeting that was exposed by The Charleston Gazette, the report said that, “In preparing the initial draft of the Aboveground Storage Tank Act, state officials should have solicited feedback from all affected parties, including environmentalists, instead of only vetting proposals with business and industry representatives.”

Of course, some of these things are about communications and public relations, and others are about process.  In some other ways, the report was not quite as honest or at least it appeared to be still trying to put the best possible spin on this. For example, as I wrote in our news story:

… The report said that “with the abundance of chemical and manufacturing facilities in the Kanawha Valley,” many of them near “critical waterways,” a more efficient way of managing required disclosure forms about toxic chemical inventories at those operations should be implemented.

The report asserts that, while the state had established a “comprehensive statutory framework” in 1984 to regulate underground chemical storage tanks, aboveground tanks were not regulated “under an applicable federal or state permit” and tanks like the MCHM tanks at Freedom Industries “escaped government oversight.”

The report said that the new storage tank law “will help address these shortcomings, will increase public safety significantly, and will help protect the environment.”

The truth is, state and local officials were given information that showed Freedom was storing these chemicals just upstream from the region’s drinking water intake. But nobody — including members of the local media, like me — bothered to look at or use this information in any meaningful way (see here and here). So while it’s certainly true that officials need “a more efficient way of managing” chemical inventory disclosures, it’s also quite an understatement about the failure to use available tools to prevent or respond to a disaster.

And the truth is that the Freedom site wasn’t “not regulated”, but — as DEP Secretary Randy Huffman has explained previously — they were “underregulated.”  And in fact, federal authorities, in charging Freedom officials with Clean Water Act crimes, have said that the company’s failure to comply with a DEP-issued permit was a “proximate cause” of the MCHM spill. It was DEP’s job to enforce that permit, to make sure Freedom complied.

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Remembering the Bhopal Disaster

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India Bhopal

In this Dec. 5, 1984 file photo, two men carry children blinded by the Union Carbide chemical pesticide leak to a hospital in Bhopal, India.  (AP Photo/Sondeep Shankar, File)

Thirty years ago tonight, a leak of methyl isocyanate at a Union Carbide pesticide plant in Bhopal, India, killed thousands of people in Bhopal, India.

As many Kanawha Valley residents know well, the Bhopal plant was a sister facility to the Institute, W.Va., Carbide plant that is now owned by Bayer CropScience. And just months after Bhopal, a Carbide leak in Institute sent 135 people to the hospital in an event that gave momentum to passage by Congress of the landmark chemical right-to-know and emergency planning law.

For many years, local residents lived in fear of a Bhopal-type disaster here. They pointed to the Institute   plant’s huge stockpile of methyl isocyanate, or MIC, the deadly chemical that leaked at Bhopal.  Pressure for Bayer to get rid of the MIC stockpile increased dramatically following an explosion and fire that killed two workers in August 2008. The Institute plant  came under new scrutiny after that, with a U.S. Chemical Safety Board report that provided the most telling look to date about the dangers the facility presented. Then in March 2011, Bayer announced its landmark decision to never restart its MIC unit in Institute.

Coal Water PollutionBut other events remind us of the dangers that lurk just beneath the surface without proper regulation, enforcement and attention to safety. Locally, last January’s chemical spill by Freedom Industries was a case study in what can happen without prior planning or adequate government oversight (see here, here,here and here). State lawmakers responded by passing a very strong bill to regulate above-ground chemical storage tanks and local drinking water systems, but the new Republican-controlled Legislature appears poised to dismantle that bill in the upcoming 2015 session, based largely on unfounded criticisms of the bill’s potential costs (see here and here).

Despite continued serious chemical plant accidents around the nation, the Obama administration’s response and its proposed reforms have been disappointing to safety advocates.  Just last week, in its latest regulatory agenda, Obama’s Occupational Safety and Health Administration downgraded its efforts to write a new safety standard for combustible dust to a long-term action item, meaning it’s unlikely any rule will see the light of day during this administration. OSHA has delayed this rule for many years, and as we’ve written before, combustible accidents continue to claim the lives of workers, including three in a December 2010 explosion and fire in Hancock County, W.Va.

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