Sustained Outrage

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

Coal Water Pollution

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

morriseyphotoBowman-207x300

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?

 

morriseyphoto

Last week, we reported that West Virginia Attorney General Patrick Morrisey hired a campaign strategist from Walla Walla, Washington, and put him on the state payroll — at a salary of $99, 499. The political operative, Lance Henderson, who wasn’t a lawyer, quit two days later.

Now, Morrisey has taken to Facebook saying the story is “untrue.” Specifically, he says a consumer investigator position wasn’t eliminated to make way for Henderson’s newly created position of deputy chief of staff.

Henderson’s personnel action form shows that Morrisey’s office eliminated the investigator position. If you click here, you’ll see the personnel action form, which shows the elimination of position # 57 (held by former consumer fraud investigator Joe Crawford; a position titled “investigator”) and the renaming of the position to “deputy chief of staff.”

The new position is being funded from two accounts — 50% or $49,749.96 from Fund 1509 (Consumer Protection Recovery Fund) and 50% from Fund 0150 (Attorney General Salary Fund.” It would have been impossible to pay Mr. Henderson his full $99,500 salary without eliminating the investigator position.

As it stands now, the AG’s office has eliminated the investigator position, but, of course, could restore that position at any time in the future by taking a vacant position and renaming it “investigator.”

Also, Morrisey demanded that all questions regarding Lance Henderson be submitted in writing. I did so. And one of the questions submitted was this:  “Why was an investigative consumer position eliminated to make way for a deputy chief of staff position?”

Morrisey’s answer: “We have been, and continue to, actively recruit additional investigators for our office.”

I quoted that response in my initial story. He only took to his Facebook page and disputed that after we published our investigation of Lance Henderson’s hiring. And he has never contacted us to request a correction.

 

 

Horowitz seeks return to Chemical Safety Board job

Lise Olsen has a story for the Houston Chronicle that folks who follow worker safety issues and the U.S. Chemical Safety Board will want to check out:

Horowitz_OfficialThe managing director of a federal agency assigned to investigate the nation’s worst chemical accidents publicly asked this week to be allowed to return to work after being suspended for four months, according to information released on his behalf by the nonprofit Public Employees for Environmental Responsibility.

Dr. Daniel Horowitz, a Ph.D. chemist, led the U.S. Chemical Safety Board since 2010 but was placed on paid administrative leave on June 16 pending an investigation into “possible misconduct.” That leave has been extended twice, leaving the agency without its top administrator even as it conducted probes into an accident that killed four at the DuPont plant in La Porte, among other major accidents nationwide.

Importantly, Lise’s story notes:

The small agency has had no further deployments since March – despite a series of fatal accidents, fires and explosions reported at chemical plants. One incident involved a tank explosion at a Louisiana plant owned by Williams Partners, which already was the subject of another CSB probe. Another incident involved a fire that injured four at a SunEdison plant in Pasadena.

Jeff Ruch, executive director of the group Public Employees for Environmental Responsibility, told Lise:

From what we can tell, the main thing the CSB is now investigating is its own executive staff.

Lise’s story said:

The CSB itself did not immediately issue a response. Its board meets Wednesday in Washington, D.C., to discuss ongoing probes, including review of the West Fertilizer plant explosion, the DuPont La Porte gas leak and the accident at the plant owned by Williams Partners in Louisiana.

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successtopphoto

As the mid-September trial date approaches for the first of the personal injury cases against DuPont over the company’s C8 pollution, there’s been some new media interest in the story, from both The Intercept and from The Huffington Post.  Lengthy stories by both included discussion of what got a lot of this whole thing out in the open in the first place — the controversy over what happened to the Tennant family’s cattle — and issue that has now come up again in the ongoing litigation.

Here’s The Intercept:

It may have been luck too — good or bad, depending on what side of the case you’re on — that led the attorney Robert Bilott to sue the DuPont company. In any case, he was an unlikely person to take on one of the world’s largest chemical companies. A partner at a corporate firm in Cincinnati, Bilott had spent his first eight years as an attorney on the other side of the table, defending large companies like DuPont. But in 1999 a cattle farmer named Wilbur Tennant came to see him. Tennant told him that DuPont had bought land from his family that was adjacent to his farm, for what the company had assured him would be a non-hazardous landfill, according to a letter Bilott later filed with the Environmental Protection Agency. Soon, a stream his cows drank from started to run smelly and black, with a layer of foam floating on the surface. Within a few years, hundreds of Tennant’s cattle had died. Bilott had no way of knowing at the time that what seemed like a straightforward case would lead to one of the most significant class-action lawsuits in the history of environmental law.

And here’s the Huffington Post:

The Tennant clan farmed the fertile patch of soil around the home place for more than a century. In the 1950s, Jim’s father ran off, leaving his wife to look after nine cows, two mules, one hog and five children. But the family got by, eating turtle and muskrat and peddling anything it could grow or forage—wild watercress and elderberries in the spring; ginseng and lima beans in the summer; hay and apples in the fall. Their West Virginia farm eventually grew into a 700-acre operation, with more than 200 head of cattle and enough corn to pack a 35-foot silo. Jim and his wife Della bought a house on an adjoining plot of land and swapped the outhouse for an indoor toilet.

Then, in the early 1980s, DuPont, which ran a sprawling chemical plant called Washington Works in nearby Parkersburg, approached the family about buying some acreage for a landfill. The Tennants were wary of having a waste dump so close to the farm. But DuPont assured them it would only dispose of non-toxic material like ash and scrap metal, and so they agreed to sell.

Shortly after the deal closed, Jim and Della, whose home abutted the new landfill, say their two young daughters started wheezing and hacking. Worried about the girls’ health, they moved to a house in town. But most of their relatives stayed, and Jim and Della continued hunting game and eating beef grazed on the farm.

Della took her daughters’ Girl Scout troop there to catch tadpoles in the creek and make plaster molds of deer tracks. Then, at some point in the mid-1990s, the water in the creek turned black and foamy, and the family began finding dead deer tangled in the brambles. The cattle started going blind, sprouting tumors, vomiting blood.

“One time this cow was coming down the road and it was just bellowing, the awfulest bellow you ever heard,” Della told me. “And every time it would bellow, blood would gush from its mouth and its nose. It just bellowed and bellowed and blood just kept flying, and then it would fall down, and it would try to get up … We didn’t have anything to shoot it with, so we just had to watch it until finally the cow bled to death.”

DuPont lawyers understandably would prefer that a jury in the C8 cases not hear anything about the cattle. They filed a motion to have such evidence excluded, arguing, among other things, that “any statement or suggestion that C8 has caused or causes cattle disease or cattle death is unsupported and would be misleading to the jury and unfairly prejudicial to DuPont.” The plaintiffs responded that they planned to offer the cattle evidence only in response to DuPont’s claims that it has at all times acted “proactively” with regard to C8 and public safety.

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The latest on C8 pollution

pfoastucture

There’s a new report out this morning from the Environmental Working Group about the dangers of the DuPont Co. toxic chemical C8. Here’s the first bit of the group’s press release:

Newly published research shows that even very small doses of the Teflon chemical PFOA in drinking water pose a more serious threat to public health than previously thought. EWG’s report on the research, released today, shows that federal guidance on safe levels for PFOA is hundreds, even thousands of times too weak. 

You can read the full report here.  The report cites, among other things, this paper published this month by Harvard University’s Philippe Grandjean and University of Massachusetts at Lowell’s Richard Clapp, which concludes:

Perfluorinated alkyl substances have been in use for over sixty years. These highly stable substances were at first thought to be virtually inert and of low toxicity. Toxicity information slowly emerged on perfluorooctanoic acid and perfluorooctane sulfonate. More than thirty years ago, early studies reported immunotoxicity and carcinogenicity effects. The substances were discovered in blood samples from exposed workers, then in the general population and in community water supplies near U.S. manufacturing plants. Only recently has research publication on perfluorooctanoic acid and perfluorooctane sulfonate intensified. While the toxicology database is still far from complete, carcinogenicity and immunotoxicity now appear to be relevant risks at prevalent exposure levels. Existing drinking water limits are based on less complete evidence that was available before 2008 and may be more than 100-fold too high. As risk evaluations assume that untested effects do not require regulatory attention, the greatly underestimated health risks from perfluorooctanoic acid and perfluorooctane sulfonate illustrate the public health implications of assuming the safety of incompletely tested industrial chemicals.

Meanwhile, in federal court over in Ohio, there was another in a series of important rulings (see here and here)  in advance of the mid-September and late-November start of trial in the first two of the thousands of personal injury cases pending against DuPont.  This particular ruling, issued on Wednesday by Chief U.S. District Judge Edmund A. Sargus Jr., denied DuPont’s motion for summary judgment on the issue of punitive damages in the cases brought by Carla Marie Bartlett and John M. Wolf.

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EPA set to announce new methane regulations

Natural Gas, fracking

Word is out that the U.S. Environmental Protection Agency will propose later today new rules aimed at reducing methane emissions from the nation’s booming natural gas industry.

UPDATED: Here’s our Gazette-Mail story on the EPA announcement:

The Obama administration is proposing new standards that are part of a broader strategy to require the nation’s booming oil and gas industry to reduce its emissions of heat-trapping methane by 40 percent to 45 percent.

The New York Times reports:

The Obama administration is expected to propose as soon as Tuesday the first-ever federal regulation to cut emissions of methane, a powerful greenhouse gas that contributes to global warming, by the nation’s oil and natural-gas industry, officials familiar with the plan said on Monday.

The proposed rule would call for the reduction of methane emissions by 40 to 45 percent over the next decade from 2012 levels, the officials said. The proposal was widely expected, after the Environmental Protection Agency said in January that it was working on such a plan.

According to The Wall Street Journal:

The move is part of a broader regulatory agenda Mr. Obama is pursuing as he seeks to make addressing climate change a legacy of his time in the White House. Earlier this month, the EPA issued final rules cutting carbon emissions from power plants 32% by 2030 based on emissions levels from 2005.

Tuesday’s announcement reflects the Obama administration’s middle-ground approach toward the oil and gas industry. The Interior Department said Monday it has issued a permit to Royal Dutch Shell PLC to drill for oil and natural gas in the Arctic Ocean, providing the company a long-sought victory and angering environmentalists who say the move runs counter to Mr. Obama’s efforts to address climate change.

Meanwhile, with the onset of the fracking boom, concerns over methane, a potent greenhouse gas, have grown within the administration. Methane has a warming effect on the planet more than 20 times greater than carbon dioxide, according to the EPA.

We’ve talked about this issue many times before on this blog (see here, here, here, here and here), most recently here.

Also today, there’s a new study out on the issue, being reported by the Times this way:

A little-noted portion of the chain of pipelines and equipment that brings natural gas from the field into power plants and homes is responsible for a surprising amount of methane emissions, according to a new study.

Natural-gas gathering facilities, which collect from multiple wells, lose about 100 billion cubic feet of natural gas a year, about eight times as much as estimates used by the Environmental Protection Agency, according to the study, which appeared on Tuesday in the journal Environmental Science and Technology.

The newly discovered leaks, if counted in the E.P.A. inventory, would increase its entire systemwide estimate by about 25 percent, said the Environmental Defense Fund, which sponsored the research as part of methane emissions studies it organized.

EPA is planning to announce its new rules at noon …

The Utica Shale: Big deal or big hype?

drill
Earlier this summer, Gazette-Mail business writer Andrew Brown produced a detailed look at how West Virginia’s oil and gas industry uses partition lawsuits to assemble the mineral rights it wants to pursue natural gas drilling in the Marcellus Shale region. Now, Andrew has spent some time examining the recent hype over the Utica Shale and provides us with this guest blog post:

Based on reports, one can be forgiven for believing that West Virginia is about to witness an immediate surge in gas exploration in the state’s northern counties. Over the past month, coverage of the gas industry has been fueled by a new study by West Virginia University that suggests the state may be sitting above another one of the world’s largest gas reserves – the Utica shale, a formation located several thousand feet below the now well-known Marcellus.

When the study was unveiled in Canonsburg, Pa., on July 14, numerous stories were written that played up the Utica’s potential and the possibility of the formation overtaking the Marcellus as the primary target of gas companies.

The State Journal wrote:

While the Marcellus Shale basin has been getting most of the credit for West Virginia’s recent natural gas boom, a recent West Virginia University study suggests the Utica play could soon fall under the spotlight.

Data from the Utica Shale Play Book Study, a two-year geological study conducted by the Appalachian Oil and Natural Gas Research Consortium, suggests the Utica Shale play is much larger than original estimates, and its size and potential recoverable resources are comparable to the Marcellus play, the largest shale oil and gas play in the U.S. and the second largest in the world.

The Exponent Telegram quoted Doug Patchen, the director of the Appalachian Oil and Natural Gas Research Consortium, the WVU group that led the study:

 “It certainly has that potential. Right now, we’re estimating it has an equal potential, at least, to the Marcellus. It’s just a matter of time,” Patchen said.

With all of this hype over the formation, it should come as no surprise that gas companies – some of which helped to fund the study — took the opportunity to emphasize their plans to drill their first Utica wells in West Virginia. On July 31, the EQT officials emphasized the results of a Utica test well in Pennsylvania and reiterated their interest in drilling another well in Wetzel County later this year. As the State Journal reported:

EQT Corp.’s test well in the Utica Shale in western Pennsylvania has produced more dry natural gas than expected, so now the question is whether the Utica test well it plans to drill in Wetzel County soon will deliver the same results.

And less than two days after the study was released, Antero Resources jumped on the opportunity to announce its first exploratory well in Tyler County. The Exponent Telegram predictably linked the company’s announcement to the WVU study:

News of Antero’s first Utica well in the Mountain State comes as new research suggests the gas play contains far greater reserve than originally thought. On Tuesday, researchers released the results of a West Virginia University-led study that concluded the Utica holds 782 trillion cubic feet of technically recoverable natural gas and another 1,960 million barrels of oil.

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Senate confirms new CSB chair, member

Important news from last week about the U.S. Chemical Safety Board. It’s there in the list of Senate confirmations:

Chemical Safety and Hazard Investigation Board

Kristen Marie Kulinowski, of New York, to be a Member of the Chemical Safety and Hazard Investigation Board for a term of five years.

sutherlandVanessa Lorraine Allen Sutherland, of Virginia (right), to be Chairperson of the Chemical Safety and Hazard Investigation Board for a term of five years.

Board member Rick Engler (who has been acting as chair of the panel) issued this statement:

I congratulate Vanessa Sutherland on her Senate confirmation as the new Chairperson of the U.S. Chemical Safety Board (CSB) and Dr. Kristen Kulinowski on her Senate confirmation as CSB Board Member.   I look forward to working closely with them on the important work of the CSB to help prevent chemical incidents.  Both bring broad expertise and experience to their new positions.  Both were confirmed on August 6.

Let’s hope that somehow, someway, this action will get the board back on track to serve its vital function for workers and communities.