Will the Chemical Safety Board survive?

July 21, 2015 by Ken Ward Jr.


Obama administration Chemical Safety Board nominee Kristen M. Kulinowski testifies during a Senate confirmation hearing last week.

It’s growing increasingly difficult to see a light at the end of the tunnel that the U.S. Chemical Safety Board finds itself in these days. Here’s one of the latest takes on things, from the San Francisco Chronicle:

The tiny federal agency that has urged big reforms in how California regulates oil refineries is in disarray.

To some, the strife at the U.S. Chemical Safety Board — the 40-person authority charged with investigating industrial accidents and recommending ways to improve safety — bears strong resemblance to the headlines from developing nations:

Its leader, seen by critics as an autocrat, is forced out before his term is up. His successor takes charge in what detractors call a backroom maneuver and moves quickly to consolidate power, ordering loyalists of the ousted regime removed from their posts with the help of armed guards.

“What is going on at the Chemical Safety Board is a little slice of the eastern Ukraine here in Washington, D.C.,” said Jeff Ruch, executive director of the Public Employees for Environmental Responsibility, a group that advocates for government workers.

Meanwhile, he said, the board’s mission of pushing regulatory reform is languishing. “The industrial infrastructure is getting older, and we’re not doing anything about it.”

Engler_RichardLRNow, when I interviewed the CSB’s acting chairman, Rick Engler, a few weeks ago, he had some solid things to say. But in some ways, the jury is probably still out. For example:

—  Chairman Engler said that he disagrees with efforts by chemical industry lobbyists to narrow the scope of the board’s investigatory authority, but he also emphasized his belief that the board itself needs to narrow its priorities.  “We are a very small agency and we can be most effective by focusing on a small number of issues,” Engler told me.

— While he says that we are currently at a critical time of the Obama administration when it comes to any potential chemical safety reforms, Chairman Engler also does what so many people in the labor community appear willing to do: Let the heads of agencies like the Occupational Safety and Health Administration off the hook for not more aggressively using their rule-making authority these last nine years.  Engler noted his own view is “there isn’t any point” in criticizing OSHA chief David Michaels for his agency’s failure to move beyond the talking stage on the CSB’s “Most Wanted” safety reform: A new federal standard on deadly combustible dust. “The bottleneck is above his level and it’s unfortunate that we have a system that puts so many hurdles in front of urgently needed standards,”  Engler said.

The most impressive thing I heard from Chairman Engler, though, came when I asked him if he agreed with the conclusions of now-ousted Board Chairman Rafael Moure-Eraso in a New York Times op-ed piece that the United States is facing “an industrial chemical safety crisis.” Chairman Engler said:

I think there is a continuing crisis and under my watch I don’t want to wake up in the morning and hear about the next disaster where we have multiple facilities. I really genuinely believe that enough is enough.

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Does transparency really matter in W.Va.?

July 17, 2015 by Ken Ward Jr.

Gov. Earl Ray Tomblin

It seems unlikely that most West Virginians understand much about prevailing wage — what it is, why we have it, or how it’s calculated. About the only clear explanation that the media has provided came not from a statehouse reporter or business journalist, but from my friend, op-ed writer Rick Wilson:

Beginning in the 1930s, state and federal legislators, many of whom were Republicans, took steps to ensure that the wages paid on these projects didn’t undermine the local standard of living by granting contracts to fly-by-night low-wage contractors who often performed shoddy work under unsafe conditions.

This involved surveying the local labor market to determine what typical compensation was for given types of skilled labor. The wages that “prevailed” in a given area for nonresidential construction work became the basis for prevailing wage laws.

In his piece the other day, Rick also explained something that may be lost in all the recent back-and-forth about subpoenas and documents and whether the folks at Workforce West Virginia for some reason didn’t provide every single record they had in response to a legislative inquiry about how they came up with new prevailing wage figures:

The latest development is pretty unprecedented. Republican legislative leaders have subpoenaed Workforce WV to search for emails revealing the influence of “outside interest.” I’m pretty sure that these “outside interests,” if there are any, are actually West Virginians who may have communicated with a public agency. Sometimes you’ll have that in a democracy.

By contrast, model legislation to gut the prevailing wage came straight from the playbook of the ultimate outsider group, i.e. ALEC (American Legislative Exchange Council), a corporate-funded national effort to influence state policies in the interest of the very wealthy.

Now one thing that I think is clear, though not admitted, is that if there was some hint that a conservative group’s emails to a state agency or legislative office were being withheld from some investigation, the other side would think it was a pretty important issue. I don’t say that to suggest there’s any proof that anyone at Workforce West Virginia was trying to hide anything — and certainly not to suggest that the folks at the Affiliated Construction Trades Foundation were doing anything but exercising their rights when they emailed the state about prevailing wage issues.

My point is that both sides of the political debate here seem to care less about transparency as an actual important value in our system than about allegations about the lack of transparency as an effective tool to score points on a separate political issue.

How do we know this is true?

Well, consider what happened a little more than a year ago, when Gov. Earl Ray Tomblin and his staff thought that it was just fine to have a “stakeholder meeting” about leaking chemical storage tank legislation that included only representatives of the companies that own the chemical storage tanks. I don’t recall a lot of complaints from Republicans or Democrats in the Legislature about that, though it’s certainly true that the incident played a role in some Democratic legislative leaders insisting on long public discussions in committee meetings, and passage of a very strong bill.  Of course, we all know what happened after that, when the heat died down and there was less public focus on the issue.

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Judge presses for deal on chemical spill records

July 13, 2015 by Ken Ward Jr.

Coal Water Pollution

The former site of Freedom Industries, shown in an Associated Press file photo take just after the January 2014 chemical spill. The tanks have since been removed.

We learned last week of some potential bombshell disclosures in the documents filed in the chemical spill case that’s being pursued against West Virginia American Water Co. and Eastman Chemical:

Eastman Chemical Co. did not properly caution Freedom Industries about the potential for the chemical Crude MCHM to corrode Freedom’s storage tanks prior to Freedom’s January 2014 leak that contaminated the Kanawha Valley region’s drinking water supply, lawyers for area residents allege in new court filings this week.

Lawyers for residents also alleged in their court filings that then-Freedom Industries official Dennis Farrell tried unsuccessfully on the morning of the leak to convince a West Virginia American Water Co. official to turn off the intake pumps on its Elk River treatment plant, located just 1.5 miles downstream from the site of the Freedom facility.

But we also know that key documents that could tell us more about all of this — and about the story of a long-forgotten intake West Virginia American originally had above the Freedom industrial site — remain under seal, pending a final ruling on their status by U.S. District Judge John T. Copenhaver.

On Friday, Judge Copenhaver pressed the parties in the litigation to come up with a deal about those records. In a two-page order, the judge said:

That counsel for all parties and any public document custodians be, and hereby are, directed to meet and confer on or before July 15, 2015, toward the end of reaching an agreement that would result in spreading on the public record the documents presently lodged with the court under seal as presented for filing on May 18, 2015, and May 28, 2015, and July 6, 2015.

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Judge in C8 case tells DuPont: A deal is a deal

July 10, 2015 by Ken Ward Jr.


When the C8 Science Panel issued its last set of “probable link” findings nearly three years ago, the next step for Mid-Ohio Valley residents was supposed to be relatively simple: If they felt they had illnesses the panel had linked to C8 exposure, they could sue DuPont, without having to prove again that the illnesses in question could be caused by C8.

But as the first of thousands of lawsuits against DuPont prepares for a mid-September trial in federal court in Ohio, it hasn’t worked out that way. DuPont attorneys have continued to try to re-litigate the Science Panel findings — over and over again.

Now, U.S. District judge Edmund A. Sargus Jr. seems to have had enough. In this ruling issued earlier in the week, Judge Sargus reminded DuPont of its agreement all those years ago in the settlement of the Leach case, in which the parties agreed to live with the Science Panel’s conclusions: In the six instances (kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, high cholesterol, pregnancy-induced hypertension, and preeclampsia) where the panel found a probable link to C8 exposure, DuPont would have to live with those findings in court. In the dozens of other instances where the panel found no link, residents would likewise have to live with those findings.

As Judge Sargus tried to explain in an earlier ruling on this back in December 2014:

…The Court concludes that if the individual plaintiffs prove that they are Leach Class members, and that they suffer or suffered from a Linked Disease, the Probably Link Finding is applicable to them. This means, for example, that the individual plaintiffs are not required to come forward with evidence proving that their individual dosage of C8 is sufficient to permit the Probable Link Finding to be applied to them. Under these circumstances, by agreeing to the Leach settlement, DuPont has contractually agreed to a finding of general causation.

 DuPont, though, insisted that they needed the judge to further clarify things. Company lawyers wanted to be able to argue at trial about dose, and to — in the judge’s words — “re-evaluating” the Science Panel’s reports. Judge Sargus explained:

DuPont’s mistake is focusing on the Science Panel’s reports/evaluations, instead of its findings .. DuPont has received the benefit of the No Probable Link Findings, immunity from lawsuits based on over forty diseases that tens of thousands of members of the Leach Class believe were caused by their ingestion of C8 that was released into their drinking water by DuPont.  None of those class members may engage in any analysis of the No Probable Link reports/evaluations. The conclusions reached in the No Probably Link reports, that is, the No Probable Link Findings, universally apply to the Leach Class.

The judge continued:

By way of further explanation, the Leach Settlement established a novel procedure for dealing with the approximately 80,000 individuals that make up the Leach Class by establishing the Science Panel and directing its work. Unlike the usual situation where epidemiologists start with a chemical exposure and then attempt to define the dose of that chemical which presents a sufficiently increased risk to conclude that such dose is ‘more likely than not’ sufficient to cause a particular disease, the parties directed the Science Panel to follow a very different process. The Science Panel was focused on an identified group of people (the Leach Class) with a defined level of exposure (0.5 ppb or greater of C8 for the period of at least one year) to a particular chemical (C8) and determine not how much of the chemical it might take to cause various diseases in humans generally, but which diseases were linked to the actual C8 exposures in that defined group. the Science Panel’s Probable Link Findings are, by agreement of the parties and by definition, links that exist and are ‘probable’ in the entire Leach Class.

More questions about gas boom’s climate impacts

July 8, 2015 by Ken Ward Jr.

Natural Gas, fracking

We’ve written many times before on this blog about the continuing questions regarding the climate impacts of the boom in natural gas drilling (see here, here, here, here and here). Today, there’s more news on this topic, from a series of studies sponsored by the Environmental Defense Fund. As EDF chief scientist Steven Hamburg explains:

Methane emissions from vast oil and gas operations in the densely populated Barnett Shale region of Texas are 50 percent higher than estimates based on the Environmental Protection Agency’s (EPA) greenhouse gas inventory, according to a series of 11 new papers published today in Environmental Science & Technology.

The majority of these emissions are from a small but widespread number of sources across the region’s oil and gas supply chain. These emissions come from the sort of leaks and equipment malfunctions that are relatively easy to prevent with proper and frequent monitoring and repair practices.

Inside Climate news has a great roundup of the studies available here.

So much for Chemical Safety Board transparency

June 17, 2015 by Ken Ward Jr.

When last we left the U.S. Chemical Safety Board, President Obama had pushed out chairman Rafael Moure-Eraso, and some other board members were making a lot of noise about the need for more transparency at the agency.

Fast forward to more recent events, and here’s what Government Executive reports has happened:

The Chemical Safety Board, still struggling with vacancies as it seeks stability following the forced resignation of its chairman in March, divided sharply last Thursday over an unusual procedural move that empowered the interim chairman.

Engler_RichardLRBoard member Rick Engler, Government Executive has learned, on Friday sent the staff a note, saying the board had voted to designate him the “Board Member Delegated Interim Executive and Administrative Authority in accordance with CSB Board Order 003,” and that he looked forward to “working collegially with my fellow board members and staff.”

… But critics, some from labor unions, say Engler’s special board vote to make himself acting chairman violated transparency rules and accords him too much power at a time when all await Senate confirmation of President Obama’s nomination for permanent CSB chairwoman, Vanessa Sutherland. Board member Mark Griffon’s five-year term also expires June 24.

Only two board members participated in Thursday’s vote, and it came in spite of an attempt by board member Manny Ehrlich to postpone it. Ehrlich, whose back ailment prevented his presence at the vote for acting chairman, on June 8 had sent the CSB associate general counsel a proposal for an interim sharing of power between him and Engler, saying the situation was unprecedented.

Ehrlich’s proposal attempted to “calendar” the vote, or delay it for a future public meeting. But sources familiar with the proceedings, who spoke on condition of anonymity, said board members Engler and Griffon, lacking a three-person quorum, conducted an “urgent” vote by email, and, rather than waiting for the required five days, ran it only briefly by the general counsel’s office before announcing results to staff.

The vote also removed a 180-day expiration date that was part of Board Order 003, meaning Engler’s appointment as acting chair now goes “in perpetuity” if the two remaining board members deadlock on any vote.

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The latest on the government’s MCHM studies

June 15, 2015 by Ken Ward Jr.

Coal Water Pollution

Here’s the latest new information from the federal government’s National Toxicology Program on its ongoing investigation of the Elk River chemical spill:

The National Toxicology Program (NTP) evaluated the potential maternal and prenatal toxicity of MCHM, the primary chemical spilled into the West Virginia Elk River. This update is a follow-­‐up to the December 2014 NTP Update,2 which reported the results of a preliminary study used to design this more comprehensive main study. The main study evaluated the effects of MCHM on maternal health and embryo and fetal development in rats following oral administration of MCHM at doses of 50, 100, 200, and 400 mg/kg/day. NTP found that MCHM decreased fetal weight and induced malformations in fetuses in the highest dose group of 400 mg/kg/day. A small decrease in fetal weight was observed in the 200 mg/kg/day dose group, which is similar to the small decrease in fetal weight observed in the 150 mg/kg/day dose group of the preliminary study.

There’s more:

At these dose levels, exposure to MCHM had no effect on maternal or fetal survival, and minimal effects were observed in maternal clinical pathology. The magnitude of these responses was small and not considered to adversely impact the health of the pregnant rat or the fetuses. Fetal weight was decreased significantly by 15 percent at 400 mg/kg/day, and a small decrease in fetal weight was observed in the 200 mg/kg/day dose group, which is consistent with the decrease in the 150 mg/kg/day dose group of the preliminary study. There were also increases in specific malformations in the 400 mg/kg/day group. The malformations included extra ribs in the lumbar and cervical region of the fetus and decreased fusion of cartilage to the sternum. Although not considered a malformation, increases in unossified (non-­‐mineralized bone) or incomplete ossification (partially mineralized bone) of the sternebrae (bones of the sternum) and vertebrae were observed in fetuses in the 400 mg/kg/day dose group. These effects on ossification are consistent with the decreased fetal weight, indicating delayed fetal growth.

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About that new EPA ” Clean Water Rule” …

May 28, 2015 by Ken Ward Jr.

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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Residents want Supreme Court’s take on pipeline

May 27, 2015 by Ken Ward Jr.

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.

EPA issues final water quality rule

May 27, 2015 by Ken Ward Jr.

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.