Sustained Outrage

We ran a story on the front page of Sunday’s print edition that described a major change in West Virginia’s water quality standards that’s been proposed by the state Department of Environmental Protection. Here’s the way we started the story:

200dep_sign1Department of Environmental Protection officials are proposing water quality rule changes that would allow more cancer-causing chemicals to be discharged into West Virginia rivers and streams and could make it somewhat easier for industry to have drinking water protections removed for some state waterways.

Agency officials say the changes are DEP’s response to a legislative mandate to re-examine how West Virginia decides which state streams will be designated as potential drinking water sources and to make the stream-flow figures used for carcinogen limits more closely align with long-term exposure risks and U.S. Environmental Protection Agency recommendations.

But environmental groups are opposing the DEP proposals, one of which was rejected after being dubbed the “Cancer Creek” bill when it was the subject of a heated legislative battle more than two decades ago.

That proposal, which mirrors one frequently lobbied for by state industry groups, would change the stream flows used in pollution limit calculations from one using low-flow conditions to one using average flow — a move that agency officials acknowledge allows greater levels of cancer-causing chemicals.

As the story explains, the WVDEP proposal would calculate water pollution limits for cancer-causing chemicals based on an average flow figure — called the “harmonic mean” — rather than the state’s current practice of using a low-flow figure. The state currently uses a flow referred to as “7Q10,” which is the lowest seven-day consecutive flow that occurs at least once every 10 years.

You can read the whole story online here, but if you’re wondering what the real impact of the proposal would be, it’s hard to tell, at least from what WVDEP officials are saying at this point:

One thing that DEP officials acknowledge is that the switch to harmonic mean would result in permit limits that allow more cancer-causing chemicals to be discharged into West Virginia’s streams. How much more? Of what chemicals and in what rivers or streams?

DEP officials say they don’t know. A statewide review to answer those kinds of questions hasn’t been done.

Digging through public comments and agency documents about one of the last times that the state considered a switch to harmonic mean, though, might help provide some context for the proposal’s impact.

Back in 2003, the Affiliated Construction Trades Foundation — which came up with the name “cancer creek” when it fought this sort of a change as part of its opposition to the proposed Mason County pulp mill in the early 1990s — submitted this set of comments when the WVDEP was recommending a change to harmonic mean.

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AG Morrisey joins challenges to EPA gas rules

morriseyphotoWest Virginia Attorney General Patrick Morrisey announced yesterday that his office had filed a challenge on the state’s behalf to the latest U.S. Environmental Protection Agency rule aimed at reducing greenhouse gas emissions.

The rule, finalized in June, would greatly curb emissions of methane from oil and gas operations to address a problem scientists are increasingly concerned may be reducing the climate change benefits of burning less coal (see here, here and here).

In a tweet announcing his action, here’s what AG Morrisey’s office said:


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Coal Water Pollution


There continues to be interesting maneuvering in the federal class-action case over the water crisis that followed the January 2014 Elk River chemical spill.

The latest court filing, just last night, is this brief from lawyers for Kanawha Valley residents that argues that U.S. District Judge John T. Copenhaver Jr. should not rule in favor of Eastman Chemical in the Toxic Substances Control Act claims in the case.  Recall that Judge Copenhaver asked for additional briefing on the issue — which boils down to whether Eastman violated the law by not properly testing the chemical or warning buyers or the public about potential health impacts, or about possible safety concerns related to the type of storage tanks Freedom used.

Among other things, the new legal brief argues:

Here, without a complete and competent toxicological analysis of the risks of acute and chronic effects to human health from exposures to Crude MCHM, Plaintiffs and the Class Members face the continuing and ongoing threat and health risk resulting from any future release of the substance into the environment. Without updated and accurate published [safety data sheets] sheets that take into account the results of competent and thorough toxicological results from studies evaluating the health risks caused by Crude MCHM, Plaintiffs face the same dangers and risks.

Interestingly, there’s also another new issue that’s come up in the case: This filing from the lawyers for residents asking Judge Copenhaver to “take judicial notice” of more than a dozen facts — basically a long list of times, dates and places where the “do not use” order given to West Virginia American Water Co. customers was in place (for example, see here, here and here).

A basic part of the case against West Virginia American is the allegation that the company could have — and should have — taken steps to avoid the disruption of water service caused by the spill, by perhaps by closing its drinking water intake to avoid contaminating the system, for example.

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W.Va. logging company fined $42,000 by OSHA

A West Virginia logging company, Switchback Timber Inc., of Bradley, has been fined $42,000 by the U.S. Occupational Safety and Health Administration for one willful, one repeat, 13 serious and three other-than-serious safety violations.

In a press release, OSHA said that agency officials began an inspection on April 5, after a complaint alleged multiple safety hazards at the worksite, and as part of the agency’s local emphasis program for logging, Switchback Timber did not have all onsite employees trained in first-aid and CPR training, resulting in the willful citation. The company was cited for this same violation in 2013. According to OSHA:

The repeat citation involved a lack of proper protective footwear for employees operating chainsaws. The serious violations included the company’s failure to:

— Provide leg and face protection.

–Ensure workers wore hardhats when outside machine cabs.

— Ensure employees used seatbelts while operating a bulldozer.

— Fully enclose a bulldozer to prevent the operator from struck-by hazards.

–Ensure machines made for only one operator did not have multiple passengers.

–The company was also cited for not having onsite operator’s manual for a bulldozer, and not providing employee training and monthly health and safety meetings.

Prentice Cline, OSHA’s area director in Charleston, said:

CPR and first-aid training were critical in this case because Switchback Timber employees were working in a remote area as far as 10 miles from the nearest medical response area. With workers exposed to severe injuries and struck-by hazards, this training can mean the difference between life and death. This company was well aware of OSHA safety requirements, but failed to comply, which is unacceptable and will not be tolerated.


200dep_sign1It’s the time of year when public hearings are held on rule changes being proposed by the West Virginia Department of Environmental Protection.

There’s a complete list of their proposals and hearing times/dates online here. But it seems important to highlight for now one specific hearing that’s coming up on Monday evening. It concerns proposed changes to the DEP Division of Air Quality’s rules for public notices for certain applications for air pollution permits.

You can read the proposal for yourself here. I’ve highlighted the portions about public notices.

In short, the proposal appears to be removing requirements that certain permit applications, when they go through public comment periods, include publication of a legal notice about the application and the comment period in local newspapers.  Instead, these notices would simply be posted on the WVDEP website.

One issue with this — and we’ll see if this receives any significant public comments — is that a notice in the local newspaper could be seen by anybody who reads that paper for their local news or obituaries or other information. To see notices on the WVDEP webpage, citizens would have to make it a point to visit that page — or if the agency also does email notices, sign up to receive those.

Of course, the idea behind publishing notices in the first place in newspapers “in general circulation” in the affected area is so that the general public — not just a specialized group that follows these issues — gets notice and have an opportunity for input.

The public hearing on this proposal, and on other air quality rule changes, is at 6 p.m. on Monday, Aug. 1, at the WVDEP office at 601 57th Street S.E., in Kanawha City.

UPDATED:  Here’s a story updating this post with information from DEP and from this evening’s public hearing.

About that Antero spill …

DEP Photo Antero Spill Report


Readers may recall a post a couple of weeks ago about a West Virginia Department of Environmental Protection settlement with Antero Resources about a series of spills at the company’s operations (See WVDEP probe of Antero spills finds … more spills).

Well, a coalition of citizen groups — including the West Virginia Rivers Coalition, West Virginia Citizen Action Group and the West Virginia Surface Owners Rights Organization have submitted comments to WVDEP about this deal. Here’s some of what they said:

This enforcement action sets a bad precedent by signaling to irresponsible drilling companies that non-compliance is cheaper than compliance. Antero’s degree of non-compliance reinforces the perspective that drilling companies can get away with violating permit requirements and in fact shirk the permitting process completely with minimal repercussions. WVDEP must hold the company accountable for their blatant disregard for the law, implement stricter enforcement actions, and provide consequences that deter non-compliance rather than allowing drilling companies to escape compliance with a minimal financial penalty.

You can read the full comment letter here.


freedom aerial

Commercial Photography Services of West Virginia

U.S. District Judge John T. Copenhaver Jr. just issued an interesting ruling in the pending class-action case against West Virginia American Water Co. and Eastman Chemical over the water crisis that followed the January 2014 Elk River chemical spill.

In short, Judge Copenhaver wants both sides to submit additional legal briefs to address the role of Eastman Chemical — which sold MCHM to Freedom Industries — in the water crisis case. Plaintiffs in the case argue that Eastman violated the federal Toxic Substances Control Act, by not properly testing the chemical or warning buyers or the public about potential health impacts, or about possible safety concerns related to the type of storage tanks Freedom used.

Specifically, the judge says:

… The parties should address the facts supporting a conclusion that plaintiffs have suffered an injury, fairly traceable to Eastman’s alleged violation of the Act, which will be redressed by a favorable decision of this court.

Briefing should also consider whether Eastman’s alleged noncompliance with the Act constitutes a “real and immediate” threat of injury supporting injunctive relief.

The additional legal brief from the plaintiffs is due Aug. 2, with any Eastman response due by Aug. 9. You can read the judge’s order here.




If you’ve been following the issue of questions that surround who exactly continues to have the liability for DuPont Co.’s C8 pollution (see here, here and here), there’s some pretty interesting news that’s come out of a teleconference Wednesday among the lawyers and the judge in federal court in Ohio — where thousands of cases against DuPont are pending.

It seems that U.S. District Judge Edmund A. Sargus Jr. is becoming increasing concerned — and is finally moving toward ordering DuPont to turn over information that lawyers for the plaintiffs in these cases have demanding, and that they hope might shed some light on the situation.

According to a transcript of the telephonic conference, the judge told DuPont:

… The longer this takes and the more difficult it becomes to get this information, truthfully, the more I’m determined that there is something that needs to be ferreted out here. I hope it turns out to be the big nothing. But I can tell you from long experience in this job, the more things aren’t disclosed, the more suspicious everybody becomes, and I think that’s the situation we’re in right now.

PSC continues to narrow chemical spill inquiry

Coal Water Pollution

West Virginia American Water Company’s request to further delay the state Public Service Commission’s chemical spill investigation wasn’t the only new filing in the last few days in that commission case. Also just made public is a new PSC order, which indicates clearly again the commission’s intent on keeping this inquiry as narrow as possible.

The new order, posted here, rejects another effort by the group Advocates for a Safe Water System to reopen discovery — the process of legal investigation in the case — prior to the currently schedule PSC hearings in mid-November.

Among other things, the Advocates hoped to reopen discovery so they could pursue more answers to questions raised by recent disclosures in the federal court case over the water crisis — including some remarkable documents that we’ve covered in the Gazette-Mail about the water company’s decision not to close its Elk River drinking water intake in the hours after the spill.

The PSC, though, wasn’t having any of it:

The fact that the parties to this general investigation and the parties to the federal cases examined some of the same subject matter but chose to develop the evidence differently, is largely reflective of the different roles of the two tribunals and the different legal standards governing the respective proceedings. Thus, while ASWS may utilize pertinent information from any source (including the federal cases) for any proper purpose during the evidentiary hearing in this proceeding, the fact that information developed outside this investigation may not be identical to what the parties developed here simply does not justify a wholesale re-opening of discovery, on the grounds that it is “new information” or otherwise.

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Another C8 trial scheduled


In the wake of the latest jury verdict against DuPont, there’s a ruling out now that sets what appears to be the next trial date among the thousands of cases pending against the chemical giant in federal court in Ohio.

U.S. District Judge Edmund Sargus Jr. issued this order which sets up the trial schedule in the suit brought on behalf of Kenneth Vigneron Sr. of Washington County, Ohio.  The suit alleges that C8 exposure caused Vigneron to contract including being diagnosed with testicular cancer and hypercholesterolemia.

Sargus scheduled the trial to start on Nov. 14, 2016.

In the meantime, it’s worth noting that shareholders of DuPont and Dow this week approved the huge merger between those two chemical giants, and the group Keep Your Promises DuPont continues to raise questions about this transaction:

Stakeholders want to know how the liabilities will be dealt with once the merger is completed, but beyond that, we need answers about what happens after the company splits into three smaller companies. We have a right to see the separation agreement, and we have a right to see how DuPont, DowDuPont, and any of the final three companies will handle these enormous liabilities. These details are crucial for shareholders, but they are a matter of life and death for thousands of folks in the mid-Ohio Valley.

It is ridiculous that we do not have the basic answers we need as to how our friends and neighbors will be taken care of. It appears that this merger is being carried out with no regard for the human toll it will take on communities in the mid-Ohio Valley and nationwide.