The Charleston Gazette has a long and proud tradition as a crusading newspaper. Our late publisher, W.E. "Ned" Chilton III coined the phrase "sustained outrage" and insisted the Gazette live up to that motto with long-term coverage of important issues facing West Virginia and the nation.
The mission of the "Gazette Watchdog" is simple: To carry on that tradition. We make a commitment to our readers to serve as a public watchdog over government, business, and other powerful entities in West Virginia society, to ensure that the public interest is protected.
Not so long ago, the U.S. Chemical Safety Board took a pass on investigating a significant incident — one that injured 11 workers — at the Axiall Corp. chemical plant in northern West Virginia, site of Saturday’s huge chlorine leak. The CSB refused to look into the incident, despite it being just one in a recent string of problems at the facility (see here and here).
So on Saturday, I asked if the CSB was going to deploy to Natrium and look into this chlorine leak. Two days later, the board still hasn’t decided — and really didn’t provide much of an official response to my query.
This morning I tweeted about the CSB’s relative silence on the matter:
48 hours after Axiall chlorine leak in WV injured 9 people -- and still no word on whether @chemsafetyboard is considering deploying.
As residents of Marshall and Wetzel counties fled or took shelter to protect themselves from a chlorine cloud that spewed into the air Saturday from the Axiall Corp. chemical plant at Natrium, it was impossible not to remember a long-ago and never-implemented recommendation from the U.S. Chemical Safety Board that West Virginia officials do more to try to ensure public safety from such incidents.
It was eight years ago Sunday that the fatal explosion at the Bayer CropScience plant out in Institute prompted the CSB investigation that led to this recommendation to the state Department of Health and Human Resources and the Department of Environmental Protection:
Work with the Director of the Kanawha-Charleston Health Department to ensure the successful planning, fee collection, and implementation of the Hazardous Chemical Release Prevention Program as described in Recommendation 2008-08-WV-R6, above, including the provision of services to all eligible facilities in the State.
That Recommendation 2008-08-WV-6 part refers to this recommendation to the local health department:
Establish a Hazardous Chemical Release Prevention Program to enhance the prevention of accidental releases of highly hazardous chemicals, and optimize responses in the event of their occurrence. In establishing the program, study and evaluate the possible applicability of the experience of similar programs in the country.
Readers may recall that state officials basically ignored this recommendation for a couple of years, until that troublesome chemical spill over on the Elk River that contaminated drinking water supplies for hundreds of thousands of residents. When that happened, we published this story in the Gazette:
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.
When lawmakers, under pressure following the Freedom Industries spill, passed legislation responding to the incident, they tucked this onto the mandate for a new Public Water System Supply Study Commission:
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.
There was an interesting — and potentially important — advertisement in today’s Gazette-Mail from the U.S. Environmental Protection Agency. Here’s what it said:
The United States Environmental Protection Agency (EPA) has released the EE/CA presenting the Preferred Alternative for addressing dioxin contaminated sediment in the Kanawha River between RM 31.1 (Winfield Locks and Dam) and RM 45.5 (confluence of the Coal River).
The Preferred Alternative for the Site is identified in the EE/CA as Alternative 4 – limited armored capping of sediment, monitored natural recovery, and institutional controls.
Here’s what the ad looks like:
If you want more information, be careful, because the link listed in the ad will try to download a more than 300 MB .pdf file from EPA’s website. You might find it a bit easier to read the nearly 1,500-page report from this version that I uploaded to Document Cloud.
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.
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:
Department 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.
It’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.
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.
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.
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.
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.
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.