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.

Latest DuPont citation mirrors Belle violation

May 14, 2015 by Ken Ward Jr.


Gazette photo by Chris Dorst

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

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

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

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

OSHA continued:

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

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

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

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

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

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

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

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New study warns of MCHM toxicity

May 12, 2015 by Ken Ward Jr.

Coal Water Pollution

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

Here’s the abstract:

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

And here’s the conclusion:

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

Obama rule includes oil-train secrecy

May 8, 2015 by Ken Ward Jr.

Oil Train Rules

In this Feb. 17, 2015 file photo, crew members walk near the scene of a train derailment near Mount Carbon, W.Va.   (AP Photo/Chris Tilley, File)

 As another community — this one in North Dakota — deals with the aftermath of a crude oil train derailment and fire, it’s worth looking back at the recent announcement of the Obama administration’s new rules aimed at preventing these incidents.

As Curtis Tate at McClatchy explained, there are a lot of questions about the administration’s approach:

… It is far from the final word on efforts to reduce the risk of catastrophic derailments, such as the one that killed 47 people in Lac-Mégantic, Quebec, nearly two years ago. And industry and environmental groups are bracing for a court fight over portions of the new regulations that they don’t like.

Most of the current tank car fleet that doesn’t meet the new requirements will be allowed to carry ethanol and some types of crude oil for eight more years. Environmental groups and some lawmakers objected Friday to the extended timeline.

It will be two years before the Energy and Transportation departments complete a study on the properties of crude oil and how they affect the way it reacts in derailments. While the rail industry supports the new tank car standard, it opposes the requirement for an electronic braking system on certain trains.

Also important, though, is another report from Curtis Tate, which detailed how the Obama administration — despite its claims to be transparent with the public and the press — has buried a major secrecy provision in this new rule.

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Corridor H pollution problems continue

May 7, 2015 by Ken Ward Jr.


Department of Environmental Protection photo showing sediment from Corridor H construction.

It’s interesting that the promoters of the Corridor H highway chose this week for a press conference to promote their latest proposal for funding the rest of the project and getting it completed by 2020.

West Virginia media outlets had barely finished copying and pasting the Corridor H Authority’s press release when the state Department of Environmental Protection posted for public comment a new agreement with the state Department of Transportation over the latest water pollution violations associated with construction of the highway. DEP has posted the settlement here, and is accepting public comments through June 12 (I’ve also posted a copy of the agreement here, because DEP often removes these from its website once the comment period is over).

This settlement — which includes a monetary penalty of more than $74,000 — comes after a previous settlement in January 2014 and a long list of new violations DEP discovered after that settlement.

You have to wonder if supporters of Corridor H ought to spend a little less time promoting the idea of speeding up construction, and a little more time urging DOT to ensure that construction complies with environmental laws. And not for nothing, but we’re still waiting on word on an expected re-evaluation of environmental studies of the portion of the road from Parsons to Davis …

Freedom: Time and money running out for cleanup

May 6, 2015 by Ken Ward Jr.

Mark Welch at Freedom April 2015

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

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

This morning, Welch responded with this new court filing:

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

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

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New scrutiny for C8 alternatives and DuPont

May 1, 2015 by Ken Ward Jr.


DuPont, C8 and chemicals being used to replace C8 are receiving new attention today, with the publication of a major essay in a scientific journal and the release of a critical report by the advocacy organization Environmental Working Group.

The New York Times wrapped these developments into a story headlined, “Commonly used chemicals come under new scrutiny“:

A top federal health official and hundreds of environmental scientists on Friday voiced new health concerns about a common class of chemicals used in products as varied as pizza boxes and carpet treatments.

The concerted public campaign renews a years-old debate about a class of chemicals known as poly- and perfluoroalkyl substances, or PFASs. After studies showed that some PFASs lingered in people’s bodies for years, and appeared to increase the risks of cancer and other health problems, the chemical manufacturer DuPont banned the use of one type of PFAS in its popular Teflon products, and other companies followed suit.

At issue now are replacement chemicals developed by those manufacturers and used in thousands of products, including electronics, footwear, sleeping bags, tents, protective gear for firefighters and even the foams used to extinguish fires.

The new commentary, by Linda S. Birnbaum of the National Institutes of Health and Harvard’s Philippe Grandjean, explains:

Research is needed to understand the potential for adverse health effects from exposure to the short-chain PFASs, especially regarding low-dose endocrine disruption and immunotoxicity. In parallel, research is needed to find safe alternatives for all current uses of PFASs. The question is, should these chemicals continue to be used in consumer products in the meantime, given their persistence in the environment? And, in the absence of indisputably safe alternatives, are consumers willing to give up certain product functionalities, such as stain resistance, to protect themselves against potential health risks? These conundrums cannot be resolved by science alone but need to be considered in an open discussion informed by the scientific evidence.

The Environmental Working Group report adds:

Production, use and importation of PFOA has ended in the United States, but in its place DuPont and other companies are using similar compounds that may not be much – if at all – safer. These next-generation PFCs are used in greaseproof food wrappers, waterproof clothing and other products. Few have been tested for safety, and the names, composition and health effects of most are hidden as trade secrets. With the new PFCs’ potential for harm, continued global production, the chemicals’ persistence in the environment and presence in drinking water in at least 29 states, we’re a long way from the day when PFCs will be no cause for concern.

 EWG also notes, citing what’s known as the “Madrid Statement”:

In a just-published paper, 14 international scientists have sounded the alarm, calling for tighter controls on all PFCs lest the tragic history of C8 repeat itself. Writing in Environmental Health Perspectives, they likened the new PFCs (which they refer to as PFASs) to the chemicals that replaced another group of fluorine-based substances found in the 1980s to be depleting Earth’s protective ozone layer. Although those chemicals were banned worldwide under a 1987 treaty, the scientists wrote, the alternatives are also harmful:

Global action through the Montreal Protocol successfully reduced the use of the highly persistent ozone-depleting chlorofluorocarbons (CFCs), thus allowing for the recovery of the ozone layer. However, many of the organofluorine replacements for CFCs are still of concern due to their high global warming potential. It is essential to learn from such past efforts and take measures at the international level to reduce the use of PFASs in products and prevent their replacement with fluorinated alternatives in order to avoid long-term harm to human health and the environment.

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

April 29, 2015 by Ken Ward Jr.


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

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

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

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