Sustained Outrage

Sen. Joe Manchin


The folks who run West Virginia’s Democratic Party put out a blistering press release last night, declaring:

THIS JUST IN: Evan Jenkins accepted the maximum legal contribution from out-of-state billionaire David Koch on April 28th according to federal documents.

David Koch is one half of the duo Koch Brothers who have been pouring money into West Virginia elections for political gain and misleading West Virginia voters.

The release goes on:

This contribution came just days after Congressman Nick Rahall released his “New York City” campaign ad defending himself against the misleading ads targeting him paid for by Americans for Prosperity.  

 Americans for Prosperity is a conservative outside group founded by Charles and David Koch.

 The Koch Brothers were also responsible for slashing nearly 100 West Virginia jobs by closing the Georgia Pacific Plant in Mount Hope.

 State Senator Evan Jenkins is no stranger to dirty money. He has also taken money from Republican Congressman Paul Ryan, who is the architect of the Republican Budget that attacks West Virginia’s middle class families and Don Blankenship and Massey Coal, who were responsible for one of the worst mining disasters that claimed the lives of 29 miners at Upper Big Branch.

But wait  …. wasn’t one major West Virginia Democrat just telling us (see here, here and here) that the Koch brothers are just “job creators” who aren’t doing anything against the law?

That’s right. Here’s what Sen. Joe Manchin said in response to Senate Majority Leader Harry Reid’s criticism of the Koch brothers and their political spending:

You don’t beat up people, I mean I don’t agree with their politics or their philosophy. But you know, they’re Americans. They’re doing their taxes … their not breaking the law. They’re providing jobs. Right wrong or indifferent, if you don’t like their politics … this type of rhetoric does not help us move this country and move the agenda forward.

See for yourself. Here’s the video:

Rash of shootings again raises critical gun issues

FedEx Shooting

A FedEx employee, facing, is consoled by family or friends as other FedEx employees wait to meet their family at a near by business after they were evacuated from the Airport Road FedEx facility after an early morning shooting Tuesday April 29, 2014, in Kennesaw, Ga. A shooter opened fire at a FedEx center wounding at least six people before police swarmed the facility. The shooter was found dead from an apparent self-inflicted gunshot wound. (AP Photo/Jason Getz)

This morning, we’re waiting again on word from a mass shooting incident, this one just outside of Atlanta.  Here in Charleston, the Daily Mail has a depressing map that pinpoints the locations of the rash of shootings in our community since the beginning of the year.

Of course, to hear many of our state and local elected officials talk, guns have nothing to do with shootings. And therefore, of course, stronger gun safety laws would not help reduce these sorts of crimes — let alone help avoid accidental shootings or reduce suicides in our state.

The facts and the science suggest otherwise, though … as we’ve reported many times before (see here, here, here and here). One thing that remains hard to understand is how this one fascinating study — showing that the much-touted uniform statewide guns laws that legislators like to push on cities like Charleston — may not in fact be the best approach for West Virginia.

WVTAP pulls some punches in review of CDC

freedom aerial

Commercial Photography Services of West Virginia

It’s probably fair to say that West Virginians who have become distrustful of the state and federal government’s handling of the continuing water crisis have been hopeful and optimistic about the work being conducted by the team at the West Virginia Testing Assessment Project.

One of the WVTAP leaders, University of South Alabama environmental engineer Andrew Whelton, built up a lot of credibility when he and some of his students drove to Charleston in January on their own dime to test home water supplies and help people properly flush their plumbing systems.  Dr. Whelton reached out to and welcomed input from various citizen groups, and most of his public comments have shown respect for residents — and a willingness to clearly define the unknowns in this situation, and not try to sugarcoat those unknowns just to quell public outrage.

The release a week ago of WVTAP’s results from its pilot home water testing effort was a groundbreaking example of how public pressure can force public officials — in this case Gov. Earl Ray Tomblin — to do things they really don’t want to do  — in this case test the water residents were actually being exposed to, rather than just sample at the water plant and neighborhood hydrants. The question now, of course, is whether Gov. Tomblin will cough up the money needed for a larger study that could actually characterize the levels of MCHM that are still in our region’s drinking water.

But this week’s release of a preliminary report from the WVTAP Health Effects Panel didn’t go nearly as well — and raises some significant questions about the way this part of the WVTAP effort is being handled.

When we did our print story about the panel’s public meeting on Monday, we described the preliminary report as saying that the 1.0 part per million screening level set back in January by the U.S. Centers for Disease Control was “too weak.”

But when I look back at that now, it’s more clear to me that while the report’s results made clear the CDC figure was way off — the CDC figure is 1,000 parts per billion, and WVTAP’s is 120 ppb —  the WVTAP preliminary report never really came out and said so. In fact, whoever is writing WVTAP’s press releases went to great efforts to make it look like the panel was what the CDC did was just fine. For example, the press release opined:

The panel concluded that the CDC used traditional methods and reasonable assumptions to develop their screening levels.

It was a statement like that which allowed West Virginia Department of Health and Human Resources Secretary Karen Bowling to say in her own press release that the WVTAP work was “clearly an affirmation that our water is safe and the CDC’s calculation at the time of the incident was appropriate.”

The problem with the WVTAP press release and Secretary Bowling’s comment is that they simply aren’t supported by the facts as they were laid out by the WVTAP Health Effects Panel. For one thing, the WVTAP panel decided that the appropriate assumption was that the most exposed population was formula-fed infants, not an older child weighing 10 kilograms. This is a big difference. And it’s an assumption that the CDC initially made that the WVTAP team decided was inappropriate.

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What’s really in our drinking water?


Gazette photo by Lawrence Pierce

In the wake of the January chemical spill on the Elk River, West Virginians have been lectured a time or two by water company representatives and state officials who tout how much they say is done to protect our drinking water from contamination. One of the refrains is to remind us how many chemicals water utilities have to test the water for before they pump it to our homes and businesses.

The state Division of Homeland Security and Emergency Management helpfully posted a list of these chemicals on its website here.  And during one recent public meeting in Huntington, West Virginia American Water President Jeff McIntyre explained:

… That West Virginia American Water keeps in line with standards set forth in state and federal regulations, noting that the federal Safe Drinking Water Act requires monitor and control for 100 different parameters and there are more than 85,000 chemicals that are regulated through the Toxic Substance Control Act of 1976.

First, it’s worth noting — as has been reported many times before — that terribly few of those 85,000 chemicals that Mr. McIntyre talked about being “regulated” by TSCA have actually had complete safety testing.  As Jennifer Sass, a Ph.D. scientist with the Natural Resources Defense Council, testified to Congress last month:

… In the nearly forty years of TSCA, EPA has required a full set of testing on only a few hundred chemicals of the 62,000 grandfathered under the law in 1976.

Sass went on to explain how the Elk River chemical spill highlighted these concerns:

The leaking of 4-methylcyclohexanemethanol (MCHM) and other chemicals into the Elk River in West Virginia brought home – literally into people’s homes – some of the ways that timely access to updated and accurate information is a basic requirement for both informing and protecting the public. The Elk River spill presented an acute situation: the public drinking water supply for thousands of people was suddenly contaminated with a chemical about which virtually nothing was known, other than it smelled and tasted so badly that people found the water undrinkable in many cases. Contamination of a tap water supply – and of course the water was being used for drinking, cooking, bathing, laundry and other uses leading to direct skin contact and consumption – is one of the starkest situations any community may face. It was surprising to many people – and wholly unacceptable – that thousands of gallons of a hazardous chemical could be stored and spill upstream of a drinking water intake – and that there was essentially no useful information available for the public, drinking water system operators, state or federal public health officials, or medical professionals and first responders, as to the safety or potential health and environmental effects of the substance.

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CDC’s face in W.Va. water crisis resigns


Gazette photo by Lawrence Pierce

Readers who followed the continuing water crisis in West Virginia may remember the face of the federal official standing at Gov. Earl Ray Tomblin’s podium in the photo above. Or maybe we should say the former federal official — because Dr. Tanja Popovic has apparently resigned her post as director of the U.S. Center for Disease Control’s National Center for Environmental Health.

And the stories about her resignation are certainly interesting … here’s one from The National Journal:

The head of a federal agency that investigates health problems linked to toxic-waste sites has stepped down after a clash with former Marines who believe their families were harmed by poisoned drinking water at Camp Lejeune.

Tanja Popovic’s sudden resignation followed a tumultuous seven weeks as acting director of the Agency for Toxic Substances and Disease Registry, a division of the Centers for Disease Control and Prevention, during which she assured West Virginia residents that their water was safe to drink after a toxic chemical spill in January, questioned the need for a study of cancers that may be linked to Camp Lejeune’s tainted water, and sent scolding emails to aides of lawmakers on Capitol Hill.

The story continues:

Popovic also had some tense email exchanges with the leader of a group advocating for victims of Camp Lejeune’s contamination, former Marine Master Sgt. Jerry Ensminger, in which she accused Ensminger and his colleagues of sending messages that contained “disrespectful, condescending, and even offensive content.”

“I take attacks on my professional and personal integrity very seriously,” Popovic wrote to Ensminger on March 12, “and I am profoundly saddened to see that you will stop at nothing.”

The friction culminated in a meeting on Capitol Hill last week between staff of lawmakers concerned about Popovic’s handling of Camp Lejeune issues and congressional liaisons for Popovic’s division, the CDC, and the Department of Health and Human Services, which oversees both agencies. That meeting included aides to the two senators from North Carolina, where Camp Lejeune is located, as well as Rep. John Dingell, D-Mich., author of the federal law that established the agency Popovic ran.

The next business day, Popovic’s resignation was announced in an email to top managers at the CDC, headquartered in Atlanta.

And then there’s this part of the story, which will sound familiar to West Virginians who recall how hard it was to get the CDC to talk about what was going on in West Virginia back in early January:

A spokeswoman for the CDC, Bernadette Burden, said she could only confirm that Popovic’s tenure as acting director of the agency began on Jan. 26 and ended Monday. “It’s a personnel matter,” Burden said, so no information about the resignation would be discussed.

Reached at her home in Stone Mountain, Ga., the scientist who worked for the federal government for 25 years declined to comment. “I would not like to make any comments, thank you,” Popovic said before hanging up.

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We’re still waiting for the likely signing by Gov. Earl Ray Tomblin of SB 373, the legislation that grew out of last month’s Elk River chemical spill.

In the last few days of the session, we wrote about what was going on with a provision of the bill to require further state study of the U.S. Chemical Safety Board’s recommendation for a new West Virginia chemical accident prevention program. The program, as outlined by the CSB after two different fatal chemical plant accidents in the Kanawha Valley (see here and here), Kanawha-Charleston Health Department officials would run the program under existing legal authority of the state Department of Health and Human Resources.

As written, SB 373 mentions the CSB recommendation as among the things that a new Public Water Supply System Commission must consider, saying the commission must conduct:

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.

I was thinking about this language — merely mandating that someone in West Virginia actually take a closer look at the CSB’s recommendation, not that they actually do anything to implement it — as I read a new court filing from the state DHHR. The filing came earlier this week, in response to a citizen legal action about the Elk River spill, seeking to have the state Supreme Court force DHHR and the state Department of Environmental Protection to do their jobs more effectively.

DHHR lawyers seem more than a little upset that the citizens who filed this legal action — citing the wording of a Gazette headline — alleged that the DHHR and other top state officials have basically “ignored” the CSB recommendation. Here’s what DHHR lawyers wrote:

Petitioners blame the DHHR respondents for ‘ignoring recommendations from the Chemical Safety Board in 2011 regarding the potential prevention of future chemical incidents following the tragic 2008 chemical explosion in South Charleston. Petitioners cite a January 2014 newspaper article for the proposition that “the secretary of the DHHR reported that neither it, nor DEP, would follow the CSB recommendation … That article reports that the then-DHHR Secretary, Michael Lewis, stated to the CSB that his agency did not ‘have the expertise in-house to draft the appropriate legislation that would be needed to develop the type of program suggested in your report.’

As the statement from former Secretary Lewis shows, the decision to implement the CSB recommendations was not solely within the DHHR Respondents’ discretion, as Petitioners  suggested, but would have instead required legislative action. In fact, following the CSB recommendations, DHHR continued efforts to implement the recommended chemical safety measures. For example, on April 12, 2013, an email from then-DHHR Secretary Rocco Fucillo recognized that DHHR and [DEP] had engaged in ‘considerable discussion about the logistics and feasibility of establishing such a program.’

Then-Secretary Fucillo explained that ‘since DHHR has neither the capacity, resources, nor expertise to undertake such a program, and because several other state, federal and local agencies are also recommended to take action (and in fact have some responsibility in this area), we believe the appropriate course of action would be a legislative study on the need for a program of this nature. Attached to the email was a draft resolution that DHHR intended to introduce during the 2014 legislative session.’

And here’s the kicker:

…It is thus a gross mischaracterization for Petitioners to suggest that the DHHR Respondents — professionals who diligently advocate for the health and well-being of West Virginians — would “ignore” any safety recommendation from federal regulators.

OK. First of all, the 2008 explosion that led to the CSB recommendation happened in Institute, not South Charleston.

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Secrecy in the W.Va. spill bill

Coal Water Pollution

Listening last night to the House of Delegates discuss the latest version of SB 373 — the legislative response to the Jan. 9 Elk River chemical spill — I was struck by House Judiciary Chairman Tim Manchin’s mention of the importance of citizen involvement in protecting our state’s drinking water supplies:

That’s one of the things we felt was critical, was to get the citizenry involved in this.

Of course, Chairman Manchin is right. The problem is, the way the bill is currently written, lawmakers are making it far harder than necessary for members of the public to actually get the sort of information they need to be part of the discussion.

The latest version of the bill contains three different and new exemptions to the state’s Freedom of Information Act. The stated purpose of those provisions, according to lawmakers, is to protect against hypothetical terrorist attacks aimed at tanks of dangerous chemicals located near our water supplies.

In one place, the current bill requires the state Department of Environmental Protection to provide each water system a compiled list of contaminants in each of the zone of critical concern near drinking water intakes. The bill explains that this “will enable those entities [the water companies] to possess a compiled list of the types, quantities, characteristics, and locations of all of the known potential contaminants within the zone of critical concern for each public water supply.” But, the language also says:

If any of the submitted information is requested to be kept confidential and good cause is found to grant the request, for reasons of security or other legitimate public interest concern, the protected information shall be redacted from public view and kept confidential, and it shall not be subject to public release in response to a Freedom of Information Act request under made under chapter twenty-nine-b of this code.

One problem there is that part about “good cause is found … for reasons of security or other legitimate public concern.”

That is a much weaker standard to meet to allow this secrecy than the one established under our state’s FOIA and many, many state Supreme Court rulings interpreting that Act.

The other problem is that line that says “any of the submitted information” can be found to deserve confidential protection. Lawmakers are making out as if they’re only trying to protect the exactly location of chemical storage tanks. This bill goes much further than that. And besides, exact locations of tanks can already be protected. We’ll get to how that works in a minute.

Another FOIA exemption created by the spill bill comes in a section that would required water utilities to consider that DEP list of contaminants when they are updating their source water protection plants. It reads like this:

The completed or updated plan for each affected plant, at a minimum, shall include the following … A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency.

And the third FOIA exemption is contained in a section that is, ironically, titled “Public access to information.”  It starts out just fine, with this language:

The public shall have access to all documents and information submitted to the agency, subject to the limitations contained in the state Freedom of Information Act, article one, chapter twenty-nine-b of this code.

But then it says:

A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management may be disclosed. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency.

If you’re thinking this is a bit of overkill, and that these provisions are confusing and perhaps even contradictory, you’re right. That’s why it’s important to remember, first of all, that our current FOIA already has 8 exemptions that cover homeland security information. They were added to the FOIA after the 2001 terrorist attacks in New York and Washington, D.C.

The other thing is this: Current federal and state law already allows companies to ensure confidential treatment of the exact locations of their chemical storage tanks. That provision is part of the federal Emergency Planning and Community Right to Know Act. Section 324 of that law clearly says that, when chemical inventories are being reported to regulators and emergency responders:

Upon request by an owner or operator of a facility subject to the requirements of section 312, the State emergency response commission and the appropriate local emergency planning committee shall withhold from disclosure under this section the location of any specific chemical required by section 312(d)(2) to be continued in an inventory form as tier II information.

So if the point here is to protect the exact location of chemical inventories, that’s already in federal law. The language in the bill adds needless secrecy provisions, weakens the standard for keeping information confidential, and broadens — beyond just specific tank location — the sorts of information that companies like Freedom Industry would be able to hide from the public. The bill passed the House last night, and now goes back to the Senate.

What happened to the Chemical Safety Board plan?


Photo by Tom Hindman, Charleston Daily Mail, via Associated Press

UPDATED: Read to the end for important update, with amendment planned to put CSB language back in the bill.

In the early days of West Virginia’s ongoing water crisis, one of the stories we focused on at the Gazette was this:

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. The state Department of Health and Human Resources hasn’t stepped in to provide the legal authority the Kanawha-Charleston Health Department needs to start such a program. And Kanawha County officials never funded the plan, and seldom mention that the CSB recommendation was even made.

Now, with more than 300,000 residents across the Kanawha Valley without usable water following a chemical accident at Freedom Industries on the Elk River, some local officials say it’s time for action.

“We’d had their recommendation on the books for several years now,” said Dr. Rahul Gupta, director of the local health department. “This gives us another opportunity to look at what they recommended.”

As Dr. Gupta predicted, the Freedom Industries chemical spill — contaminating water supplies for 300,000 West Virginians — provided state and local leaders another chance to focus on the CSB’s recommendation. And there’s been some talk about it, including some discussion that Delegate Stephen Skinner, D-Jefferson, would introduce a bill to require implementation of the board’s proposal.

But it appears that things are really going nowhere with this issue. That’s despite the fact that during its marathon meeting Sunday night and into Monday morning, the House Judiciary Committee appeared to have approved an amendment that included language regarding the CSB’s recommendations. The Daily Mail’s Dave Boucher mentioned this action in a blog post describing the committee’s maneuvering on the bill:

The committee created the Public Water System Study Commission, an entity that will consider the reports that come our in connection the leak and whether additional changes to the law are needed. The commission is also supposed to consider recommendations from the Chemical Safety Board’s other trips to West Virginia.

When you look at the version of SB 373 that moved out of Judiciary, though, the section about the water system study commission — W.Va. Code 22-31-12 — the Chemical Safety Board isn’t mentioned. Of course, that means that the language wasn’t considered by the House Finance Committee, and isn’t in the version of the bill that is up for debate today on the House floor.

I’ve posted here a .pdf file containing all of the amendments considered by the Judiciary Committee on Sunday and Monday. If you scroll to page 24, you’ll see the amendment from Delegate Mark Hunt, D-Kanawha, proposing the water system study commission. You can see at the bottom of the page that this amendment was adopted, right? But there’s nothing listed there about the Chemical Safety Board, or about this new commission considering the CSB’s recommendations.

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DEP increases estimate of chemical tank numbers

Coal Water Pollution

Readers who are closely following the continuing West Virginia water crisis may recall that three weeks ago, Department of Environmental Protection Secretary Randy Huffman gave a congressional committee some preliminary figures about the numbers of above-ground chemical storage tanks located near drinking water supplies around the state:

This investigation is still in its early stages, but so far, it has yielded an estimate of about 600 facilities housing approximately 3500 tanks across the State. Further investigation has determined that more than 100 of these – with as many as 1000 ASTs – may exist within an area that could impact a public drinking water source.

We’ve been trying for a while to get a list of those tanks, and this morning DEP officials finally provided it. Turns out their continuing investigation has found even more chemical storage tanks located in the “zone of critical concern” near drinking water intakes around West Virginia. Here’s what DEP spokesman Tom Aluise told us in an e-mail message:

Our investigation into the number of Above Ground Storage Tanks (ASTs) in the state is ongoing, but has yielded a preliminary number of just over 100 facilities with ASTs that may sit in a Zone of Critical Concern (ZCC), meaning there is potential to impact a public water drinking source. Those 100-plus facilities have what we’ve estimated to be roughly 1,600 ASTs. We have inspectors in the process of visiting each of the 100-plus facilities to verify the number of ASTs at each site, as well as the contents contained in the ASTs.

I’ve posted copies of two lists provided by DEP. This one contains the facilities covered by “individual” water pollution permits and this one contains the facilities that — like Freedom Industries — are covered by the less-detailed and rigorous “general” permits.

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What else could pollute Charleston’s water?

freedom aerial

Photo by Commercial Photography Services of West Virginia, via U.S. Chemical Safety Board.

Since the Jan. 9 chemical spill, lots of West Virginians have been asking some pretty good questions about the vulnerability of our drinking water supplies:  Why are facilities like Freedom Industries allowed to be located immediately upstream from drinking water intakes? What other similar sites present risks of contamination? What can be done to minimize or eliminate these risks?

A new report out this morning from the consulting firm Downstream Strategies tries to start digging into these sorts of questions.  The report is called Potential Significant Contaminant Sources above West Virginia American Water’s Charleston Intake: A Preliminary Assessment and is online here.

Among other things, the report identifies 61 potential significant contaminant sources, or PSCSs, which is nearly a dozen more than were counted in a decade-old report on the Elk River water supply from the state Department of Health and Human Resources.  Downstream Strategies explains in its report:

The largest numbers of PSCSs are identified as car dealerships (10 sites), gas stations (7 sites), permitted discharge pipes (5 sites), repair shops (4 sites), and auto repair shops (4 sites).

Notable PSCSs identified by WVBPH include the Freedom Industries site, a school bus parking and refueling facility with an aboveground storage tank, and a concrete facility with three readily visible aboveground storage tanks.

Downstream Strategies goes on to explain:

Additional research has identified other potential sites of interest within the ZCC that deserve additional scrutiny: an industrial park just downstream from the Freedom site and clusters of commercial and industrial buildings on both sides of the Elk River near the intake.

A water resources permit query identified 15 NPDES permits, two underground injection control permits, and one “no exposure” permit within the ZCC. These permits did not correlate well with the PSCSs identified by WVBPH.

The NPDES permits included three individual and 12 general permits, in addition to the general permits issued for home aeration units and construction sites that were omitted from the analysis. If the Legislature were to require individual NPDES permits within ZCCs, this new requirement would apply to these 12 identified general permits as well as to the home aeration units and construction sites omitted from this analysis.

Three facilities outside of the ZCC were identified for additional investigation. These sites include Yeager Airport, which is located immediately adjacent to the ZCC; what appears to be a propane facility located less than one mile upstream from the ZCC; and a compressor station and extraction plant located just upstream from Clendenin.

The report also says:

While this report focuses on the PSCSs and water resources permits above WVAW’s Elk River intake, the circumstances that led to contamination of the Elk River are examples of what could happen to many communities if they do not engage in proper planning and if regulatory agencies do not provide proper oversight. In some cases, tighter regulations are also warranted. Populations in Morgantown, Huntington, and cities and towns across the state are at risk if PSCSs are not accurately identified, and if risks from these sites are not managed.