Sustained Outrage

Public ranks water safety concerns high

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Coal Water Pollution

There’s a new survey out from the Kaiser Family Foundation that West Virginia readers may find interesting:

In the wake of the lead crisis affecting drinking water in Flint, Mich., the public now ranks contaminated drinking water among the most serious national health issues, trailing cancer, according to the April Kaiser Health Tracking Poll.

When asked about a series of health issues facing the country, more than a third (35%) identify contaminated drinking water as “extremely serious,” behind cancer (43%) and similar to heroin abuse (35%)  and ahead of major diseases such as heart disease ( 27%) and diabetes (31%).

Overall, women are less confident in the government’s ability to ensure the safety of public services than men are. Three-fourths of women (74%) are not very confident in their state’s ability to ensure the safety of their water, compared to two thirds (66%) of men. Similar gender differences exist on the questions about sewage and electrical services.

Most Americans (70%) say that this month they have been closely following news about unsafe lead levels in Flint’s water, up from March (63%).  More report closely following the terrorist attacks in Brussels and other conflicts involving ISIS (80%) and the 2016 presidential campaign (77%), while slightly fewer say they were closely following news about the Zika outbreak (61%).

Fielded amid news reports about government officials facing charges related to Flint’s contaminated water supply, the poll finds larger shares of the public rating their state government’s efforts to protect the water supply as either “excellent”  (17%) or “good” (37%) than “fair” (31%) or “poor” (14%).  The public rates the federal government less favorably, with more saying it’s doing a “fair” (36%) or “poor” (26%) job than saying it’s doing an “excellent” (7%) or “good” (29%) job.

Designed and analyzed by public opinion researchers at the Kaiser Family Foundation, the poll was conducted from April 12-19 among a nationally representative random digit dial telephone sample of 1,201 adults. Interviews were conducted in English and Spanish by landline (420) and cell phone (781). The margin of sampling error is plus or minus 3 percentage points for the full sample. For results based on subgroups, the margin of sampling error may be higher.

Chasing DuPont’s C8 liabilities

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Controversy continues to swirl over DuPont’s legacy liabilities for C8 contamination.

The News-Journal reported this interesting story earlier this week:

Plaintiffs suing DuPont Co. over alleged exposure to the toxic chemical C8 want to know who is going to pay the $1 billion in damages they are seeking.

Who will be held ultimately responsible is unclear, they say, because DuPont plans to merge with the Dow Chemical Co. later this year and then split into three separate businesses by 2018.

The plaintiffs this week asked a federal judge for documents clarifying DuPont’s liabilities and obligations after the merger and subsequent split.

I’ve posted a copy of that legal filing here, and the News-Journal story continues:

In an April 18 legal filing, Julie Mazza, acting associate general counsel for DuPont, said the company has not made a decision on how the liability will be handled. Mazza also said it is unclear how the company will handle its obligations under Leach v. DuPont.

The Leach case, filed by Mid-Ohio Valley residents, was settled in 2005. Under the settlement, DuPont was mandated to pay for medical monitoring of those potentially exposed to C8 and install water filters to remove the chemical from area water supplies among other commitments. Thousands of Mid-Ohio Valley citizens had opted out of the Leach settlement to pursue their own claims. Those cases will move forward at the glacial pace of 40 cases a year starting in 2017.

“Currently, there has been no determination as to how the obligations of DuPont to the other parties under the Leach settlement agreement would be allocated as part of any post-merger separations,” Mazza wrote referring to Leach v. DuPont, which was filed in 2001.

Plaintiffs’ attorneys representing those who opted out of the Leach settlement responded to Mazza with a motion asking the court to release documents providing details on the C8 liabilities. In a separate court filing, the attorneys called Mazza’s declaration “troubling.”

“It failed to supply any meaningful information regarding where the liabilities relating to the C8 litigation will end up after the proposed DuPont/Dow merger,” wrote Michael London of Douglas & London, a New York firm. “Most importantly, the declaration failed to provide any information regarding whether DuPont will even exist after the merger transaction.”

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Group calls on EPA to act on C8

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Gina McCarthy

There’s some new news out today about C8, in the form of a letter from the Environmental Working Group that demands urgent action by the U.S. Environmental Protection Agency.

The group says:

The Environmental Protection Agency was first alerted 15 years ago to contamination of drinking water by PFOA, a chemical used to make Teflon that has since been linked to cancer, hormone disruption, heart disease and other serious health problems. Since then, PFOA pollution has grown from a regional problem to a national crisis. Yet EPA still has not set a legal limit for the compound in drinking water, even in the face of repeated appeals from state officials and representatives of the public interest community.

You can read the full letter here. Among other things, the letter says:

… We remain deeply troubled by the agency’s glacial pace and uneven approach to protecting the public from this highly persistent, bioaccumulative and toxic chemical. In particular, it escapes all logic as to why EPA would issue conflicting health advisory levels for PFOA, which are leading to confusion and varied responses to the problem.

 

 

Obama’s ‘timid’ legacy on chemical safety

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Plant Explosion Texas

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.  on April 17, 2013 night killed 15 people and injured more than 160. (AP Photo/Tony Gutierrez)

This past weekend marked three years since the massive fire and explosion that killed 15 people at the West Fertilizer Co. in West, Texas. Yet despite this disaster and the time that’s gone by, the Dallas Morning News reports:

On the one hand, many of the ag-supply and feed stores that used to stock a lot of the fertilizer have stopped selling it, a Dallas Morning News investigation found. Others have beefed up safeguards, such as moving the chemical out of dilapidated buildings and into fire-resistant concrete structures. Fire officials now have the power to inspect sites, and fire departments are more likely to have had training to handle the hazardous material.

But many of the recommendations made by safety investigators have gone unheeded. None of the sites that responded to News inquiries said they had installed sprinklers systems. The state does not require them, but the U.S. Chemical Safety Board has said such a system could have stopped the West accident before it became a fatal explosion.

And despite calls for keeping stockpiles of ammonium nitrate away from populated areas, in up to eight communities tons of the chemical still sit near schools, houses, nursing homes and even a hospital, according to a News analysis of state data.

Perhaps even more to the point, as the group Public Employees for Environmental Responsibility points out in a statement labeling the administration’s legacy on chemical plant safety issues as “timid”:

An Environmental Protection Agency proposal for preventing major industrial accidents is a step forward but only a very tiny one … The EPA plan is exceedingly narrow in scope, relies on voluntary actions and brings no enforcement heft toward averting chemical plant disasters that imperil both workers and communities.

The EPA proposal, announced in late February, is the main administrative response to what happened in West — and what’s happened in many other communities around the country under President Obama’s watch (see here, here, here and here) — yet it does not even cover fertilizer plants handling ammonium nitrate, exempts utilities and water treatment facilities, and most manufacturers that use covered hazardous substances from its safety technology requirements. Also, as PEER pointed out:

— The plan relies heavily on unfunded local voluntary committees for implementation;

— Industry analyses of inherently safer technology that prevent accidents are kept secret, and thus may remain little more than academic exercises;

— EPA has devoted little enforcement muscle to ensure that even the current requirements are followed.

PEER Executive Director Jeff Ruch said:

U.S. industrial safety will be left little improved by the faint imprint left in the Obama years.  This very modest proposal is the first major change to EPA’s Risk Management Program in 20 years – and we may not be able to afford waiting another 20 years to make significantly greater progress in reducing industrial hazards that endanger the public.

C8: What about West Virginia’s water?

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In this Friday, Feb. 26, 2016 photo, a woman leaves a Tops supermarket with bottled water that is being supplied to residents in Hoosick Falls, N.Y. PFOA, long used in the manufacuring of Teflon pans, Gore-Tex jackets, ski wax, and many other products has turned up in the water in factory towns around the country like Hoosick Falls, impacting drinking water. (AP Photo/Mike Groll)

In this Friday, Feb. 26, 2016 photo, a woman leaves a Tops supermarket with bottled water that is being supplied to residents in Hoosick Falls, N.Y. PFOA, long used in the manufacuring of Teflon pans, Gore-Tex jackets, ski wax, and many other products has turned up in the water in factory towns around the country like Hoosick Falls, impacting drinking water. (AP Photo/Mike Groll)

The discovery and continued controversy over C8 contamination in the drinking water supply in Hoosick Falls, New York, continues to cause quite a stir — and a flurry of response and action by federal and state officials.

Over last weekend, as reported here by The New York Times, Gov. Andrew Cuoma made the announcement that a fairly quick move to install new filters on the local water system has had the desired results:

More than six weeks after declaring an environmental emergency in this upstate village, Gov. Andrew M. Cuomo made his first visit here on Sunday, announcing that a new filter system had successfully cleared a toxic chemical known as PFOA from the municipal water supply.

It’s quite a contrast to West Virginia, where for some residents in the Mid-Ohio Valley it took a years-long court battle to get water treatment to rid their water of C8 — and where some residents in that same part of the state still can’t get any action on the contamination in their communities.  As we recently reported in the Gazette-Mail:

While the Obama administration continues work on a long-awaited national standard for C8, the U.S. Environmental Protection Agency has tightened a pollution advisory for a town in New York — but not for West Virginia communities where drinking water has long been contaminated with the same toxic chemical.

Last week, a lawyer who has for 15 years been urging EPA to take stronger actions about C8 pollution from DuPont Co. and other firms wrote to the agency to question why officials have not updated a drinking water advisory level for Wood County communities to match one issued in late January in Hoosick Falls, New York.

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After 40 years, EPA to write spill prevention rule

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There’s some significant news out this week, with the U.S. Environmental Protection Agency agreeing in a settlement with citizen groups to write a major new chemical plant safety rule. Here’s what the Natural Resources Defense Council said in a press release:

The Environmental Protection Agency will put in place new safeguards to help protect communities from dangerous chemical spills at tens of thousands of industrial facilities nationwide, under the terms of a legal settlement approved by a federal district court in New York. The agreement is meant to strengthen protections as called for by Congress more than four decades ago.

You can read the legal settlement here.

Last July, Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety, and the NRDC sued EPA alleging that the agency had failed to prevent hazardous substance spills from industrial facilities, including above-ground storage tanks. NRDC explained:

The settlement between the groups and EPA, approved by the federal district court for the Southern District of New York, requires EPA to begin a rulemaking process immediately and to finalize spill prevention rules within three and a half years.  The forthcoming protections will cover over 350 hazardous chemicals, and will apply broadly to tens of thousands of industrial facilities across the country.

There are thousands of hazardous substance spills each year from industrial facilities that are not subject to any hazardous substance spill prevention rules, according to United States Coast Guard data from the last ten years.  Chemicals released in industrial spills can contaminate waterways, and exposure to these substances can be dangerous, and in some instances, fatal. 

Pam Nixon, spokeswoman for PCACS, said:

It is unfortunate that it took a lawsuit to get EPA to agree to set spill prevention rules.  Uniform federal safeguards for above-ground storage tanks and secondary containment will better protect not only public drinking water systems, but also the groundwater for households using private wells.

But keep in mind, as explained in a legal filing in the case:

The chemical involved in the Freedom Industries spill is not listed as a hazardous substance under the Clean Water Act … and thus would not be covered under the hazardous-substance regulations plaintiffs seek in this case. But the Freedom industries spill brought to national attention the broader threat posed by the lack of spill-prevention regulations for chemical storage facilities like above-ground storage tanks.

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Judge rejects DuPont’s bid for new C8 trial

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There’s a hefty new ruling out of federal court in Ohio, in which U.S. District Judge Edmund A. Sargus Jr. turns down a request from DuPont Co. for a new trial or a ruling in its favor as a matter of law in the big C8 case trial that ended with a $1.6 million verdict against the company.

You can read the 125-page order here. It’s a remarkably detailed history and analysis of issues not only in the trial of Carla Bartlett and her kidney cancer case against DuPont, but also of the previous litigation that led us to this point and of the long history of DuPont’s mismanagement of C8 and the health threats it poses.

Of course, there are more than 3,500 individual C8 cases to go — and Judge Sargus last month issued this order that outlines a plan for trying first the 260 cancer cases on a schedule of 40 per month starting in April 2017.

Gas Line Explosion

This image provided by the West Virginia State Police shows a fireball erupting across Interstate 77 from a gas line explosion in Sissonville, W. Va.,Tuesday Dec. 11, 2012.   (AP Photo/West Virginia State Police)

We haven’t told you much lately about the commission put together by Gov. Earl Ray Tomblin to study the safety and health problems that have come with the boom in natural gas production in West Virginia’s Marcellus Shale region.

Readers may recall that Gov. Tomblin called for a closer examination of the issue as part of his 2015 State of the State speech a year ago:

For generations, West Virginia has been one of our nation’s leading energy producing states. As we continue to explore opportunities to diversify our state’s energy portfolio, we must ensure the safety of hardworking West Virginians at drilling sites, production facilities and pipelines across the state. That’s why I am requesting a study to determine how we can best protect workers at natural gas operations. We must ensure our workers have the proper training and skills to do their jobs in the most effective way possible and return home safely. Workforce safety must be the expectation for businesses operating in West Virginia, not an afterthought.

We reported on the commission’s first meeting back in August, but haven’t checked back in with them since (largely because of the flurry of activity covering the Don Blankenship trial).

Under the governor’s executive order, the commission was to “prepare and issue a final report” by Nov. 16, 2015. We haven’t seen a final report yet. Maybe we’ll hear something tomorrow night from the governor, but at the least, I’m told that the final report should be ready later this week.

Until then, what we do have are the minutes of the commission’s last meeting on Nov. 12, which include a summary of the panel’s recommendations to the governor. The recommendations focus first on issues related to emergency response when incidents occur at oil and gas operations. For example, the commission recommended:

— The governor’s office should develop legislation to require that drilling and pipeline construction activities are subject to the state’s 15-minute notification law (W.Va. Code 15-5B-3a(b)(1)). Provisions may apply to fires, explosions, and similar emergency events (confirmed emergencies) at drilling and pipeline construction sites (with greater than 3-inch lines). Provisions also should consider situations when gaps in communications present a challenge to meet the notification time limit.

Under the direction of the governor’s office, the state should establish a database to track incidents and accidents at an associated with natural gas and hazardous liquid drilling and pipeline sites statewide. The state will monitor the database to look for trends that might require additional efforts to mitigate future issues. The W.Va. Division of Homeland Security & Emergency Management (WVDHSEM) also should map out, review, and affirm “natural gas and hazardous liquid incident” notification/communications protocols within state government.

The West Virginia Fire Marshal will conduct an evaluation to assess the need (current and future) for fire/emergency responder training and equipment. Presently, county fire/emergency responders benefit from several sources, including voluntary support from oil and natural gas companies. Consideration of any new fee related to “fire service” for emergency responders should be done prodently on a case-by-case basis at the local level.

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The chemical spill: Where things stand

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It’s been two years since since a leaky tank at Freedom Industries spilled MCHM and other chemicals into the Kanawha Valley’s drinking water supply. Here’s a roundup of where things stand on various aspects of the Jan. 9, 2014, chemical spill story:

Criminal probe — Former U.S. Attorney Booth Goodwin secured plea agreements with six former Freedom Industries officials and with Freedom’s corporate entity for criminal violations of the federal Clean Water Act. One of those deals, though, allows former Freedom President Gary Southern to get back $7.3 million and a Bentley luxury car that were seized when he was charged for his role in the spill.

Public Service Commission investigation — A PSC investigation of West Virginia American Water Co.’s response to the Freedom spill has been stalled for more than a year. Commissioners, though, have recently hinted that they might drop the investigation. A hearing is scheduled for Jan. 22 on the matter. West Virginia American has been working to at least narrow the scope of the PSC probe, while also pushing for a large rate increase and facing a campaign by the group Advocates for a Safe Water System for a public takeover of the operation.

New state legislation — During the 2015 session, state lawmakers significantly rolled back the chemical tank safety provisions of SB 373, the law that unanimously passed in the months after the Freedom spill. The industry-based SB 423 exempted thousands of tanks from new Department of Environmental Protection Safety standards. In its second annual report, a water safety study commission recommended clarification of what information about chemical tanks could be released and urged continued funding of a Bureau for Public Health effort to help public utilities write source-water protection plans.

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Morrisey and the retired law professor

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When recently confronted with an email and other documents that contradict West Virginia Attorney General Patrick Morrisey’s assertions that he never took part in his office’s lawsuit against drug wholesaler Cardinal Health, Morrisey issued a press release saying he recused himself from the case (Morrisey’s wife, Denise Henry, is a longtime lobbyist for Cardinal Health), even though retired WVU law professor Forest Bowman gave him the green light in 2013 to get involved in the lawsuit.

But on June 30 this year, Morrisey refused to disclose that he had ever contacted Bowman, in response to a May 21 Freedom of Information Act request that I submitted to his office.

Instead, Morrisey released an email from former chief deputy Dan Greear that revealed Bowman planned to introduce Morrisey at a Morgantown Chamber of Commerce dinner. (Bowman supported Morrisey in the 2012 election, donating $100 to his campaign at a fundraiser).

I also asked for communications from Greear to Bowman, but received a vague answer that “the documents we have discovered through our search that are arguably responsive concern private, non-public matters are therefore not subject to production.”

Earlier this year, in response to a FOIA lawsuit, Morrisey disclosed he had written a “draft letter” — a letter he never sent — on July 18, 2013, to a private attorney, articulating what information the lawyer would need to provide legal advice should Morrisey “become involved in the Cardinal Health lawsuit in the future.” Morrisey declined to name the private lawyer — presumably it was Bowman — release the letter and reveal what advice was given.

But on Oct. 24, in response to a Gazette-Mail story about Morrisey’s ties to Cardinal Health, he released a statement from Bowman that said the following:

“Beginning in April of 2013, I spoke with Attorney General Patrick Morrisey and Dan Greear about the relevant facts in the Cardinal matter. They provided me with a description of the relevant background, including Attorney General Morrisey’s prior work in private practice, and his wife’s work at her government relations firm. Based upon my review, it has been and remains my belief that Attorney General Morrisey would be ethically permitted to participate in the Cardinal Health case, if he elected to do so. I initially conveyed that position to the Attorney General and his office in the spring and summer of 2013.  Based upon the information provided to me, I do not believe that a legal conflict exists under West Virginia rules. Any decision to step aside was purely voluntary and went further than the rules require.”

To this day, Morrisey has declined to release any documents that would show what information he provided to Bowman.

I talked to Professor Bowman today. He said his political contribution to Morrisey did not “slant” the legal advice he gave to the attorney general in any way.

“That had nothing to do with my advice,” said Bowman, who contributes to numerous GOP candidates.

Bowman also recalled that he gave his ethics advice to Morrisey in writing.

If that’s the case, why is Morrisey refusing to release it?