Sustained Outrage

Water quality, the Kanawha River and ORSANCO

FishShock3  ..  8x5.09  Tues.  ellis photo

Gazette photo by Chip Ellis

Today’s Gazette featured a front-page story that highlighted a visit to Charleston by the Ohio River Valley Sanitation Commission — known as ORSCANO — and the group’s portable aquarium, which was stocked with some fish capture during a shocking exercise on the Kanawha River. As the story explained:

A diverse assortment of fish from the vicinity of the confluence of the Elk and Kanawha rivers in downtown Charleston was captured by electro-fishing biologists Monday to fill a mobile aquarium now on display at Haddad Riverfront Park.

Personnel from the Department of Environmental Protection and the Ohio River Valley Water Sanitation Commission (ORSANCO) stunned the fish with a carefully moderated electric current sent into the water from cables dangling from a pair of bow-mounted booms. The stunned fish were then netted, placed in an onboard tank, and transported to the aquarium.

The story also included some interesting comments from John Wirts, a biologist with the West Virginia Department of Environmental Protection:

A lot of people have the assumption that the Kanawha River is polluted and doesn’t support many fish.  With the passage of the Clean Water Act and the end of untreated sewage being dumped in the river, that’s no longer the case. We want people in this area to know how much cleaner and full of life the river is, compared to how it used to be … Back then, oxygen levels were near zero during parts of the summer, and every summer fish died.

It’s certainly true that the passage of national environmental legislation like the Clean Water Act has cleaned up our country’s waterways, and local rivers and streams like the Kanawha and the Elk have benefited from reduced pollution loads. But the popular storyline from regulatory agencies often can overlook the remaining challenges for public health and the environment.

For example, if you review the latest statewide water quality report from the WVDEP (start, for example, on page 28 of the narrative) you’ll find that serious problems remain for the Kanawha River.  As Angie Rosser, executive director of the West Virginia Rivers Coalition, told me today:

Of course it’s encouraging to see the rebound of life, though the fish still are too toxic to eat. All of WV’s waters have fish consumption advisories; people are advised not to eat fish at all from the Lower Kanawha downstream of Dunbar.  The Lower Kanawha, including the section at the confluence of the Elk, is also listed as impaired by fecal coliform so sewage is still an issue and the safety of water contact recreation is also a concern. So, we still have a ways to go to restore our right to a swimmable, fishable river.

It’s also worth pointing out that ORSANCO, a multi-state commission that sets water quality standards for the Ohio River, is in Charleston for meetings that include at least one pretty significant agenda item:  A proposal to delay for two years the date after which pollution “mixing zones” are not allowed for bioaccumulative chemicals of concern, or BCCs. Generally speaking,  such zones allow pollution limits to be met some distance downstream from industrial outfalls, after pollution discharges has been diluted with river water. Also generally speaking, eliminating the mixing zones could force companies to have to cut back on their pollution discharges in the first place.

If this all sounds familiar, it’s because we’ve written here before about ORSANCO’s decision a year ago to grant PPG Industries a variance from the commission’s move to outlaw mixing zones — in PPG’s case for toxic mercury discharges.

Groups like the West Virginia Rivers Coalition and the Kentucky Waterways Alliance are opposed to the delay in eliminating these mixing zones. In one recent comment letter, for example, the Rivers Coalition explained:

ORSANCO, states and dischargers have had ten years to prepare for this deadline and few dischargers have taken action to reduce their discharge of mercury or determined if they need to take advantage of the variance procedure which ORSANCO adopted approximately one year ago. A deadline extension rewards dischargers for their procrastination and negligence, negates accountability and undermines ORSANCO’s authority in setting firm deadlines.

West Virginians want better gun safety laws

Navy Yard Shooting Funerals

The casket for Navy Yard shooting victim John R. Johnson arrives at Good Shepherd Lutheran Church in Gaithersburg, Md., Tuesday, Sept. 24, 2013, for Johnson’s funeral service.  (AP Photo/Susan Walsh)

In the wake of the slaughter last week at the Washington Navy Yard, President Obama has called for a “transformation” in the nation’s gun laws.  But the issue still seems to be one that political leaders don’t want to move on. Even West Virginia Sen. Joe Manchin has indicated he’s got new plans to resume his push to try to mildly improve the background check system for firearms purchases.

But there is more evidence out this week that Manchin’s constituents would like to see him pursue his legislation.  In a survey of West Virginians released yesterday, Public Policy Polling reports:

67% support requiring background checks for all gun sales, including 79% of women. A third of respondents say they were more likely to vote for Manchin because he supported background checks, while 29% said this made them less likely to support him.

Sen. Joe Manchin
We’ve written before (see here. here and here) about legislation crafted in part by Sen. Joe Manchin, D-W.Va., to finally rewrite the nation’s toxic chemical safety law.

Well, it turns out that a number of states around the country aren’t too happy with this bill. They’re worried that Congress is attempting to override their own steps to enact tougher safety rules for chemicals and for other environmental threats like climate change. As we wrote in a story late last month:

A major rewrite of the way the nation regulates toxic chemicals is under fire from states that say the bill — co-sponsored by Sen. Joe Manchin, D-W.Va. — usurps their authority to set their own safety standards.

The debate over which level of government should take the lead on chemical safety comes after Manchin’s repeated complaints that the U.S. Environmental Protection Agency oversteps its authority on mountaintop removal and other coal industry issues.

Covering a hearing of the Senate Committee on Energy and Public Works, we explained:

Committee Chairwoman Barbara Boxer, D-Calif., said she is concerned that the bill could roll back her state’s landmark 1986 law to protect consumers from toxic materials. California officials also are worried that the bill could undermine the state’s water quality laws and its efforts to combat global warming.

Michael Troncoso, senior counsel to California Attorney General Kamala D. Harris, testified about the matter during Wednesday’s hearing. So did Ken Zarker, pollution prevention and regulatory assistance section manager at the Washington State Department of Ecology.

Troncoso submitted a letter signed by attorneys general in Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Oregon, Vermont and Washington state to “urge Congress not to undermine the traditional role of the states in protecting their citizens from toxic chemicals.

“The federal government must regulate chemical safety so that there is a minimum level of protection across the nation,” Troncoso told lawmakers. “At the same time, we urge the committee to recognize and honor the long-standing authority of the states to act alongside the federal government to protect the health, safety and welfare of their citizens — to act as laboratories of innovation in the area of toxics regulation and to tackle the problem of dangerous chemicals as a partner with the federal government.”

morriseyAnother West Virginia public official who has made a lot of noise about ensuring that the federal government doesn’t usurp the rights of states to chart their own course on environmental regulations is Attorney General Patrick Morrisey (see here and here). Given his interest in protecting the rights of states, I thought it would be interesting to see what he thought of Sen. Manchin’s legislation. When West Virginia leaders fight federal efforts to crack down on the coal industry, is their effort about protecting the rights of states, or is it more about helping industries avoid tougher regulations?

So on Aug. 2, a couple of days after the Senate hearing, I asked Morrisey’s publicist, Beth Ryan:

Given his interest in ensuring no federal overreach onto the authority of states, I wondered if Attorney General Morrisey or his staff have looked at this legislation and have any thoughts on it, particularly regarding the concerns expressed by other states about pre-emption of their chemical safety rules.

Today, I heard back from Ms. Ryan. Here’s what she said:

The Office of the Attorney General has no comment on this issue.


Standoff: Another reminder of gun dangers in W.Va.


Gazette photo by Rusty Marks

The situation could have turned out worse yesterday in Charleston, following a tense standoff between a resident and local policy. As we reported in this morning’s Gazette:

Police believe a Charleston attorney shot himself near the end of a three-hour standoff with officers Monday morning outside his Cornwall Lane home.

Charleston Police Chief Brent Webster said Mark Bramble told paramedics as he was being taken to the hospital that he shot himself in the head with a handgun before officers forced their way into his home.

Bramble was undergoing surgery Monday afternoon, but was expected to live, Webster said at a news conference.

Still, the incident is another reminder of the dangers of West Virginia’s love affair with firearms — as if we needed another one after the shooting deaths late last month of four people up in Clarksburg.  It’s popular for political leaders in West Virginia to talk about how we all grow up around guns, about how being taught to use them safely is part of our heritage.  But then we hear about an 11-year-old boy being killed by a “stray bullet” fired by his grandmother, who thought she heard intruders outside her home.

We’ve talked before about West Virginia’s rate of gun deaths (see here and here), which ranked 12th highest in the nation over the last decade. As mentioned before:

Interestingly, West Virginia’s firearms homicide rate — 2.54 per 100,000 people in 2010 — was better than the national rate of 3.59 and ranked 30th among the states. But our state’s firearms suicide rate was 11.33 per 100,00 people, the 5th highest in the nation and nearly twice the national rate.

W.Va. doesn’t prohibit pickup truck passengers

The news out of Clay County, W.Va., this morning is terrible:

A teenage girl was killed and 10 other people were injured after a pickup truck wrecked in Clay County overnight.

State Police spokesman Sgt. Michael Baylous said Kara Conley, 17, of Bomont, was killed in the wreck, which happened on W.Va. 36 near Wallback around 4 a.m.

The others were taken to area hospitals. Paige Johnson, spokeswoman for Saint Francis and Thomas Memorial hospitals, said Saint Francis received three patients from the wreck, and all had been treated and released by 9:45 a.m.

Isaac Murphy, 18, of Clay, was driving the truck, Baylous said.

Speed was a factor in the wreck, Baylous said, and marijuana was found at the crash scene. He said police would await toxicology reports on Murphy before proceeding with any charges against him.

But the incident also serves to highlight the fact that West Virginia is among the states that still doesn’t have a law prohibiting passengers in the cargo areas of pickup trucks. This fact was pointed out just last year in a report from AAA and also in a recent analysis by the National Conference of State Legislatures and a review by the Insurance Institute for Highway Safety.

The dangers of riding in the back of pickup trucks are well known, having been examined closely three decades ago in a report by the National Transportation Safety Board. Recounting the study’s findings in a more recent paper, the NTSB explained in 2010:

The study focused on an accident involving a compact pickup truck carrying 11 passengers—3 riding in the cab and 8 riding in the open cargo area of the truck. The driver failed to negotiate a curve, and the truck ran off the road and overturned. Seven people in the cargo area were killed. The study also examined 1975–1979 data from the National Highway Traffic Safety Administration’s Fatality Analysis Reporting System involving accidents with occupants riding in the cargo areas of pickups.

As a result of the study, the Board made a recommendation to the states to review existing laws and revise as necessary to prohibit passengers from riding in the open cargo area of a vehicle, except during work-related activities.  As of February 2010, 30 states and the District of Columbia have enacted laws that restrict riding in the cargo areas of pickup trucks.

Experts consider riding in pickup truck beds especially risky for children and young people, as explained in a 2011 paper published in the the official journal of the American Academy of Pediatrics:

Of particular concern regarding the safety of pickup trucks for children is the use of the cargo area of pickup trucks for the transport of children and youth. Because the cargo area is not intended for passenger use, it is neither required nor designed to meet occupant safety standards applicable to passenger locations. The fatality risk to children in the cargo area of pickup trucks has been well described.

The most significant hazard of travel in the cargo area of a pickup truck is ejection of a passenger in a crash or noncrash event (eg, sudden stop, turn, swerve, or loss of balance, as well as intentional or unintentional jumps and falls). It is fortunate that the number of children and adolescents younger than 18 years killed as passengers in the cargo area of pickup trucks has declined by more than 50% over the past decade, from more than 40 per year to less than 20 per year more recently.

The most effective prevention strategies for reducing the number of deaths and injuries to children in pickup trucks are the prohibition of travel in the cargo area and age-appropriate restraint use in an appropriate rear-seat location in the cab.

Last month, we reported about how West Virginia Sen. Joe Manchin was among the driving forces behind a compromise piece of legislation aimed at reworking the nation’s toxic chemical safety law, the Toxic Substances Control Act. We said at the time (see also this blog post about Manchin laying low about his role in the matter):

Lawmakers in Washington have reached agreement on a potential compromise to reform the way the nation regulates toxic chemicals, and Sen. Joe Manchin, D-W.Va., is being credited with helping to forge the bipartisan deal.

The bill would, for the first time, require the U.S. Environmental Protection Agency to review the safety of all chemicals used in commerce. Currently, the federal Toxic Substances Control Act allows the vast majority of chemicals to remain on the market without any evidence of their safety.

The EPA has tested only about 200 of the 84,000 chemicals in the agency’s inventory.

The groundbreaking deal was reached between New Jersey Democrat Frank Lautenberg, who, for years, has pushed a tough bill to modernize chemical protections, and Louisiana Republican David Vitter, who has been trying to build support for a more modest, industry-backed proposal.

“Our agreement shows that protecting our health and environment does not have to impede our economic growth,” Manchin said in a prepared statement.

Well, it turns out that maybe the legislation isn’t as great as Sen. Manchin made it sound — at least not according to a growing coalition of public health advocacy organizations.  Yesterday, dozens of those groups sent a letter to lawmakers about the Chemical Safety Improvement Act that Sen. Manchin is co-sponsoring. The letter — signed by groups including the Breast Cancer Fund, Greenpeace, Environmental Working Group, Healthy Child, Healthy World and the Asbestos Disease Awareness Organization, says:

We respect and appreciate the efforts to identify areas of bipartisan compromise and consensus on chemical safety legislation. However, we believe that the resulting Chemical Safety Improvement Act, S. 1009, has serious limitations and will fall far short of our shared goal of safeguarding human health from the risks posed by exposure to toxic chemicals. As a result, we will oppose this bill as it is currently written unless it is amended to address our key concerns.

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ATF Special Agent in Charge Robert Champion delivers his remarks about the findings of a joint investigation of the West Fertilizer Plant fire and explosion during a press conference in the parking lot of West High School in West, Texas, Thursday, May 16, 2013. Investigators narrowed the number of possible causes to three: a problem with one of the plant’s electrical systems, a battery-powered golf cart, and a criminal act. They ruled out a wide number of others, from a rail car on site loaded with fertilizer to someone smoking. (AP Photo/The Dallas Morning News, Tom Fox)

We reported first here nearly a month ago now about how the U.S. Chemical Safety Board appeared to have been benched in its efforts to investigate the terrible fire at that fertilizer facility in West, Texas.

There appears to have been a little bit of movement toward the CSB being able to do its job (see here and here). And publicly, CSB Chairman Rafael Moure-Eraso has been trying to play nice, saying recent:

“On behalf of our investigation team and the board, I would like to thank the mayor, fire and police officials, community members and West Fertilizer employees for their outstanding cooperation with the CSB during an extraordinarily difficult period.  Our hearts go out to the residents, employees, and emergency responders and we want everyone to know we are fully committed to providing a thorough public account of all the factors that led to this catastrophe. After a disaster of this scale, it is essential to pursue improved safety as we look toward the future.

In a press release, the CSB even outlined some details of what it plans to investigate:

CSB Western Regional Office Director Don Holmstrom said, “The CSB will be examining many issues surrounding the explosion such as the safe storage and handling of ammonium nitrate, the siting of vulnerable public facilities and residential units near the facility, and emergency responder safety. In addition, the investigation will examine the adequacy of national standards, industry practices, and regulations for the safe storage and handling of ammonium nitrate.”  
CSB investigation areas of inquiry will include ammonium nitrate safe handling and storage standards here and in other countries such as the UK and Australia; land use planning and zoning practices for high-hazard facilities in relation to schools, public facilities, and residential areas; ammonium nitrate detonation mechanisms; the effectiveness of regulatory coverage including OSHA, EPA, and the State of Texas; whether there are inherently safer products or safer ways to store and mitigate the damage should a fire or explosion occur. The investigation will examine the emergency response during the fire at West, and practices, including preparedness, fire codes, and guidelines for good practices found in other jurisdictions.

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We’re all going to be hearing a lot about pipeline safety today. Gov. Earl Ray Tomblin has scheduled an event out in Sissonville to ceremonially resign a pipeline safety bill that he already signed nearly a month ago.

Gov. Tomblin included this legislation among his big successes during this year’s legislative session, and his office described the bill this way in a press release:

H.B. 2505 relating to increasing civil penalties for pipeline safety Violations: This bill brings state statutes into federal compliance and increases the maximum penalty to $200,000 per violation, per day and a maximum penalty of $2 million for a series of related violations. By increasing penalties to meet federal standards, this bill ensures the Public Service Commission of West Virginia’s pipeline safety efforts will receive its full allotment of federal money.

But let’s keep in mind first of all that the bill affects only a small portion of the natural gas pipelines across West Virginia. Enforcement of safety regulations for the vast majority of pipeline mileage — for interstate transmission lines — is handled by the federal Department of Transportation’s Pipeline and Hazardous Materials Safety Administration.

During his State of the State address back in February, the governor described his administration’s efforts on this issue in this way:

Just a few months ago, many of us watched in shock when flames ripped through a community near Sissonville leaving houses leveled and a part of our highway charred when a major pipeline exploded. It was a true blessing no one was injured or killed. We have learned from that explosion and the investigation that followed, that West Virginia’s pipeline safety statutes are outdated-with weak penalties and enforcement measures. In fact, West Virginia is currently out of compliance with federal guidelines.

Tonight, I am proposing legislation to bring our State into federal compliance. I propose a maximum penalty of up to $200,000 per violation, per day. It is my hope by increasing penalties, we will meet federal standards and ensure overall public safety.

But the truth is that state officials knew long before the near-disaster in Sissonville that West Virginia’s safety fines for pipeline were not in compliance with federal requirements. As we’ve reported before, legislation failed during the 2012 session that would have fixed this problem, and similar failed bills date back to at least 2005. Federal officials have repeatedly warned the state about the problem in regular audits of the PSC’s pipeline safety program.

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Gazette photo by Chip Ellis

Today’s Gazette story about Sen. Joe Manchin refusing to give up his efforts for fairly modest improvements in our nation’s background check system for firearms purchases reminded me to check back again with the West Virginia Democrat’s office about something the senator said in the floor speech the day the Senate rejected his legislation.

In that speech, Sen. Manchin said the following:

That is what we have been talking about: that 90 percent of Americans–83 percent of West Virginians–support a criminal background check or a mental background check. They do not support infringing on an individual’s right. If you are out in parts of my State–my beautiful State of West Virginia–where you know everybody, you know who is responsible or not, you know a family member you want to give a gun to. We know that. We did not infringe on that.

Personally, I had not seen any West Virginia-specific polling — though to hear what some folks up at the statehouse say, West Virginians are opposed to any kind of gun safety laws at all.

Well, it turns out that Sen. Manchin got his figures a little wrong. But the result is really the same. Sen. Manchin was citing a survey by Orion Strategies which, according to this press release, found:

63 percent of West Virginia households currently have a firearm (compared to the national average of 41 percent).

75 percent of all respondents believe that “that universal background criminal and mental checks should be mandatory in order to purchase firearms from any location.” 17 percent oppose and the remainder is undecided.

Now, this was not a huge sample size, and the poll has a relatively high percentage of error, and the press release does not include any other details about the questions asked. But the result is supported by other surveys that show most gun owners and NRA members support better background checks.

Still, this West Virginia data got relatively little attention from the media (there were some stories here and here) when the survey was announced about a month before the Senate vote. And the poll results certainly weren’t made a central part of the discussion about what political risks Sen. Manchin may or may not be taking by showing leadership on gun safety.

You can watch Sen. Manchin’s floor speech here (fast forward to about the 12-minute mark for the polling numbers):

This Thursday April 18, 2013, aerial photo shows the remains of a fertilizer plant destroyed by an explosion in West, Texas. The massive explosion at the West Fertilizer Co. Wednesday night killed at least 14 people and injured more than 160. (AP Photo/Tony Gutierrez)

It’s been a week now since the explosion at the West Fertilizer Co. facility in West, Texas, that killed 14 people, injured 160 and leveled part of the town.

Am I the only one who is starting to wonder why we haven’t heard much of anything yet from the U.S. Chemical Safety Board about its work so far to get to the bottom of what caused this disaster?

Remember that the CSB announced late last Wednesday night that it was deploying a team to the site, and at least one media report said the small agency had at least a dozen investigators on the scene.

So what you want about the Chemical Safety Board — and the fine recent reporting by the Center for Public Integrity points out some serious issues facing the agency — but the agency is generally one of the more transparent in the federal government. They’ve got a fairly aggressive press office, and it’s unusual for them to parachute into an accident site and not be pretty quickly having media availabilities to outline what they’re doing there and spell out general areas they think will be important going into a new investigation (see for example here and here).

So far, though, I don’t believe we’ve had one single update from the board’s investigation team in West, Texas.

Now, this disaster highlights quite a lot of issues that have been raised during the CSB’s previous investigations here in West Virginia following the 2007 propane explosion that killed four people at the Little General Store in Ghent, the August 2008 explosion and fire that killed two at the Bayer CropScience plant in Institute, and the series of leaks at the DuPont Belle plant that left one worker dead in January 2010. And some media reports are already focused on these issues. For example:

— How accurate and useful are the “risk management plans” that companies are supposed to file with regulators as part of the process of trying to reduce hazards and prepare for potential accidents? Randy Lee Loftis of the Dallas Morning News reported very early on that West Fertilizer’s plan greatly downplayed the potential risks of its facility, and we know from an EPA Inspector General’s report released just last month about much-needed improvements in federal oversight of RMPs.

— Why was this facility last inspected by the U.S. Department of Labor’s Occupational Safety and Health Administration in 1985? Dave Jamieson of the Huffington Post has offered some potential explanations for this. But we’ve seen this pattern before in West Virginia (see here, here and here), where OSHA ignores a potentially dangerous facility for years, until someone — or many someones — is hurt or killed. Even when some obscure OSHA policy or politically-motivated congressional rider doesn’t prohibit that agency from acting, OSHA is so underfunded and understaffed that at last count by the AFL-CIO, the agency can inspect all workplaces on average just once every 131 years.

— Firefighters in West, Texas, apparently knew of the presence of dangerous chemicals at the fertilizer facility, but it’s not yet clear how that information played into their response to the initial fire at the facility. In previous incidents here in West Virginia (see here, here and here), emergency response — though heroic — has not always been well-planned and sometimes leads to more risk or even, tragically, more deaths.

Since we hadn’t heard anything from the CSB, I sent their managing director, Daniel Horowitz, some questions about these issues, hoping to get a better idea of which of them would be a focus on the agency’s investigation at West Fertilizer. My request got an odd response. Here it is:

These are reasonable questions but at the current time both the site and the investigation are under the direction of the federal ATF and the state fire marshal. I am referring your questions to those agencies in the event they can provide information.

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