Public hearing on Aboveground Storage Tank Act rollback – Friday

There will be a public hearing this Friday, March 6th at 8:30am in the House of Delegates Chamber on Senate Bill 423 – the bill to roll back last year’s Aboveground Storage Tank Act. As I posted last week, Senate Bill 423 has been amended since it was originally introduced. The amended bill still significantly weakens the Aboveground Storage Tank Act passed in response to the water crisis.

Last year, we were able to pass strong legislation because of the action of hundreds of people who sent emails, made phone calls, and showed up at the legislature. Come out on Friday to tell the legislature not to roll back the progress made last year.

Anyone can sign up to speak at the hearing. Here are some tips:

  • Get to the House Chamber 10-15 min. early and sign up to speak
  • Prepare to only have about 1-2 minutes to speak.
  • You can bring a copy of your comments to submit for the record. You can also bring friends’ written comments and submit them on their behalf.

 
And here are some suggested talking points:

  • Senate Bill 423 exempts 12,000 tanks that are within 1,000 feet of surface water. These tanks should be added back into the regulations.
  • SB 423 rolls back inspection requirements. Self-inspections should occur at least annually by qualified personnel. Tanks close to water intakes need to be inspected by DEP annually.
  • SB 423 rolls back Spill Prevention and Response Plan requirements. These plans need to be submitted to DEP and updated every 3 years, and must include info on stored chemicals.
  • SB 423 rolls back permit requirements. Individual permits for tanks closest to drinking water intakes should be required.
  • SB 423 needs to explicitly require that modifications to existing permits or plans be as stringent as the standards in the Act so as not to create a loophole in regulation of tanks.
  • SB 423 creates new restrictions on disclosure of information that could prevent water utilities from being aware of threats to the water system. Information about the location and contents of tanks, including data on stored chemicals, needs to be shared with water utilities.
  • SB 423 needs to incorporate the rules already developed by the Department of Environmental Protection. Otherwise another year will go by without any aboveground storage tank regulations in place.

Amended version of Senate Bill 423 moving through legislature

Earlier this week, the Senate Judiciary Committee passed an amended version of Senate Bill 423. We posted about SB 423 before - the original version would have completely gutted last year’s Aboveground Storage Tank Act, eliminating tens of thousands of tanks (including the Freedom Industries tanks!) from the regulations.

The amended version of Senate Bill 423 is not as destructive as the original bill, but is still less comprehensive than the original Aboveground Storage Tank Act. The amended version:

  • Gets rid of Senate Bill 423′s blanket exemption for the natural gas industry
  • Creates a tiered regulatory structure, in which tanks that are within the “zone of critical concern” of a drinking water intake OR contain hazardous materials OR contain at least 50,000 gallons are categorized as “Level 1″ and are subject to more stringent regulations. Level 2 tanks are those within the “zone of peripheral concern” of a drinking water intake – about twice the size as the zone of critical concern. Tanks outside this area are not regulated.
  • Requires that Level 1 tanks be inspected “at least once every five years” – significantly less than the annual inspections required in the original Act.

 
This amended bill is expected to pass out of the Senate this week and then be taken up in the House Judiciary Committee.

When will WV American Water start fixing its infrastructure?

More than a thousand people in Kanawha and Boone counties have been without water for the past couple days, as a result of water main breaks on WV American Water’s system. Some businesses have also temporarily shut down. According to yesterday’s Daily Mail,

Although crews worked Monday to restore water service to more than 1,000 customers in Kanawha and Boone counties after weekend cold temperatures caused the widespread water main breaks, customers and city officials were losing patience.

Service was restored to “most” customers in South Charleston and “some” in Boone County late Monday afternoon, according to a press statement from West Virginia American Water.

“The customer outages we are experiencing are due to multiple water main breaks and high system demand that have drained water storage tanks and hampered recovery efforts,” West Virginia American Water President Jeff McIntyre said in the news release.

This all sounds very familiar.

We already knew that WV American Water’s Kanawha Valley system loses about 37% of its water — far higher than the Public Service Commission’s standard of 15%. Now, for two years in a row, we have seen severe weather (i.e. winter) impact quality of service and put customers at risk. Mr. McIntyre has repeatedly stated that the main breaks and leaks in the system on January 9th, 2014 contributed to the water company being unable to shut off its intake to let the MCHM spill pass without having the system go dry. Indeed, a number of the storage tanks in the downtown Charleston area were at or nearly empty on January 9th, meaning that they would not be able to supply water very long to customers if the intake were shut off.

Luckily, this winter we haven’t seen another major chemical spill into the Elk. If we had, it looks like our infrastructure would be just as unprepared.

House Judiciary Committee votes in favor of reclassifying Kanawha River

The House Judiciary Committee voted today in favor of reclassifying the Kanawha River (from just above Belle downstream through Charleston to the Ohio River) as “Category A.” Reclassifying this stretch of the Kanawha would allow for the possibility of using it as a secondary water supply for Charleston and surrounding counties.

Based on previous experience, we had expected an amendment to be proposed that would weaken water quality standards, by eliminating Category A protections statewide. No such amendment was even offered. (Perhaps the explosion of an oil train into the Kanawha River earlier this week made it a bad week for offering amendments to weaken statewide water quality standards).

WV American Water president Jeff McIntyre stated that adding a second intake in the Charleston area – which would only be possible if that stretch of the Kanawha River is reclassified – would cost approximately $50 million. Adding an intake further upstream (above Belle) would cost $150 million. Alternatively, an independent assessment estimated that building a reservoir along the Elk would cost approximately $25 to $35 million.

The bill now passes to the House floor for a vote and then (if it passes) over to the Senate. We will keep you posted on future developments.

Public hearing Monday on reclassification of the Kanawha River

We have just learned that there will be a public hearing on Monday at 8:30am in the House of Delegates Chamber at the state capitol on House Bill 2289, the bill that would reclassify the Kanawha River as a drinking water source. This would allow for the option of creating a second water intake on the Kanawha River.

Given the various industry attacks that have been made against similar proposals, there needs to be a strong public show of support for this bill – and against any amendments that would weaken statewide drinking water standards.

If you plan to attend the public hearing, here are some pointers:

  • Anyone can speak at the hearing. Get to the House Chamber 10 min. early and sign up to speak on the page that says “in Support of HB 2289″.
  • Prepare to only have about 1-2 minutes to speak.
  • You can bring a copy of your comments to submit for the record. You can also bring friends’ written comments and submit them on their behalf.

Legislature starts to take action on reclassifying the Kanawha River

The Department of Environmental Protection’s proposal to reclassify the Kanawha River as Category A – which would allow it to be used as a drinking water supply – needs to be approved by the state legislature. House Bill 2289 is the bill that would do just that. This morning, House Bill 2289 was passed out of the House Industry & Labor Committee and now moves to the Judiciary Committee.

Ironically, this bill might become a vehicle for amendments to weaken water quality protections statewide. During the December interim session, legislators voted down a proposal to eliminate Category A protections statewide; a similar proposal came up in the state Senate last week. Similar harmful amendments are expected to be proposed for House Bill 2289 in the Judiciary Committee.

Meanwhile, House Bill 2574 – the bill to gut the Aboveground Storage Tank Act – is also in the House Judiciary Committee. The Committee has not yet put that bill on its agenda since it was introduced last week.

We will keep you posted if/when either of these bills is put on the Committee’s agenda for a vote!

UPDATED: House and Senate Judiciary Committees considering bill to gut SB 373

A bill was introduced today to gut the 2014 Senate Bill 373 (the Aboveground Storage Tank Act) by limiting the regulations only to tanks larger than 10,000 gallons and within the “zone of critical concern” of a drinking water intake. HB 2574 also eliminates the requirement that such tanks be inspected annually. And it entirely exempts from regulation the oil and gas industry by exempting: “[d]evices that are used to store brines, crude oil, or any other fluids that are directly related to the exploration, development, stimulation, completion, or production of crude oil or natural gas”; “Pipeline facilities, including gathering lines”; and “Liquid traps, atmospheric and pressure vessels, or associated gathering lines related to oil or gas production and gathering operations”.

A few weeks ago, Downstream Strategies and the WV Rivers Coalition released a report that shows just what the impact of this bill would be. The authors analyzed the tanks registered under SB 373 and found that:

  • About 3,100 of the 47,000 registered tanks are located in a zone of critical concern. But almost half of all tanks are within 1,000 feet of surface water.
  • Approximately 3/4 of the tanks are associated with the oil & gas industry
  • 4% of the oil & gas tanks are within a zone of critical concern and another 40% (or about 14,000 tanks) are within 1,000 feet of surface water

By gutting SB 373 in the way that this bill proposes, tens of thousands of tanks would be exempted – many of which are within 1,000 feet of surface water and some of which are actually in the zone of critical concern of a drinking water intake (but belong to the oil & gas industry).

The bill was referenced only to one committee – the House Judiciary Committee – which means that the House leadership is serious about passing this bill.

This is a bipartisan bill, whose sponsors include Tim Miley – the former Speaker of the House – who is a major spokesman for the oil & gas industry. During the summer, Miley had been calling for a special session to rewrite the bill to exempt oil & gas.

This bill is likely to move quickly. Here is a list of all of the members of the House Judiciary Committee. Email them today and tell them to vote against House Bill 2574.
john.shott@wvhouse.gov, patrick.lane@wvhouse.gov, tmanchin@manchininjurylaw.com, stephen.skinner@wvhouse.gov, mike.azinger@wvhouse.gov, frank.deem@wvhouse.gov, tom.fast@wvhouse.gov, michael.folk@wvhouse.gov, geoff.foster@wvhouse.gov, roger.hanshaw@wvhouse.gov, woody.ireland@wvhouse.gov, john.mccuskey@wvhouse.gov, john@overington.com, kelli.sobonya@wvhouse.gov, amy.summers@wvhouse.gov, terry.waxman@wvhouse.gov, ryan.weld@wvhouse.gov, brad.white@wvhouse.gov, andrew.byrd@wvhouse.gov, barbaraf@wvhouse.gov, shawn.fluharty@wvhouse.gov, ken.hicks@wvhouse.gov, dana.lynch@wvhouse.gov, clif.moore@wvhouse.gov, larry.rowe@wvhouse.gov

UPDATE (2/5/15): Today this same language was introduced in the Senate as S.B. 423 – and, again, it has been single-referenced to the Judiciary Committee. Here are the email addresses of the Senate Judiciary Committee — tell them to vote “no” on Senate Bill 423.
charles.trump@wvsenate.gov, david.nohe@wvsenate.gov, bob.beach@wvsenate.gov, art.kirkendoll@wvsenate.gov, ronald.miller@wvsenate.gov, corey.palumbo@wvsenate.gov, mike.romano@wvsenate.gov, herb.snyder@wvsenate.gov, bob.williams@wvsenate.gov, mike.woelfel@wvsenate.gov, mitch.Carmichael@wvsenate.gov, ryan.ferns@wvsenate.gov, ed.gaunch@wvsenate.gov, robert.karnes@wvsenate.gov, Kent.Leonhardt@wvsenate.gov, Mark.Maynard@wvsenate.gov, jeff.mullins@wvsenate.gov

WV American Water – Still planning to plan

Today, an op-ed piece ran in the Charleston Gazette under the name of Jeffrey McIntyre, president of WV American Water. This document is the latest chapter in WVAW’s PR effort to paint its inaction in the past year as some kind of major business turnaround.

In the op ed, Mr. McIntyre addresses the questions that Advocates for a Safe Water System have been focusing on for the past six months or more.  Here is the Advocates’ diagram of what a clean water system looks like (I had to blow up the graphic for this post.  Click on the graphic for a more readable version) -

Advocates graphic

Compare Mr. McIntyre’s op-ed with the five elements of a safe water system in the diagram.  In Mr. McIntyre’s own account, WV American has done almost nothing to move the company toward providing a safe water system.  There is a lot of talk in Mr. McIntyre’s op-ed about “planning” and “evaluation” and “studies,” but only once does he use the word “constructed.”

The word “constructed” describes a new gas chromatograph/mass spectrometer laboratory that WV American Water has actually installed.  But this is not a step forward, because WVAW had this testing equipment until 2004 when the company removed it to reduce costs when the German electric utility RWE purchased WVAW’s parent company, American Water Works.  RWE bailed out on American Water Works in 2009, but WVAW never reinstalled this important testing equipment until after one of the biggest water utility disasters in US history.

Note that WVAW’s new/old lab equipment is located inside its treatment plant.  The lab can analyze water samples, but it is not a continuous monitoring system for water coming into the plant at its intake on the Elk River.  What about that intake monitoring equipment?  Mr. McIntyre informs us that WVAW’s managers “are investing” in this equipment, with no information about when it will be installed or operating.

For source water protection planning, WVAW has “partnered” on a “pioneering project” about which Mr. McIntyre provides no details and no projected date of operation.  Take a look at testimony by Downstream Strategies’ Evan Hansen in the WV PSC general investigation.  Go to page 26 (.pdf page numbering, not the document numbering) of that testimony.  You will see that WVAW had no source water protection plan or emergency plan in place when the WV Bureau for Public Health asked the company to provide information about those plans in 2006.  In 2006, WVAW responded to Bureau survey forms that it was only planning to prepare those plans at that time.  The company did nothing further before the Freedom Industries disaster in 2014.

So while WVAW is still “partnering” and “planning” we still have no source water protection plan.  In the year since a history-making failure, WVAW still has no plan on paper to protect its water sources.  As in 2006, WV American Water is still planning to plan.

So let’s look at what Mr. McIntyre’s op-ed tells us about what WVAW is doing to ensure Advocates’ 5 elements of a safe water system -

  • Source water protection – planning to plan
  • Continuous monitoring – “purchased” but not operating
  • Second source – some progress: WVAW’s McIntyre has changed his mind on Category A status for the Kanawha River, opening up more options for a secondary intake, but here too, WVAW is essentially still planning to plan
  • Infrastructure renewal – no mention of repair of WVAW’s leaky distribution system or its system storage failures that contributed to the collapse of its system after the Freedom Industries crisis
  • Coordination and emergency planning – Mr. McIntyre provided no information in his op-ed about specific efforts by WVAW to create new coordination with state agencies or local emergency services

The last question in Mr. McIntyre’s op-ed asks “What do you want your customers to know today?”  What follows is a lot of verbiage, but no real substance.  An honest answer would have been “as little as possible, so that WV American Water can continue to operate without public oversight or accountability.” When we look at what WV American Water has done in the WV PSC general investigation into the company’s response to the Freedom water crisis, we see WVAW stalling and hiding information.  When we look at Mr. McIntyre’s op-ed, we see lots of wish lists, but few details about what the water company is actually going to do.

WV American Water has given us little beyond talk to make our water system safer.

The people of the Kanawha Valley need more than puffery.  We need a safe water system.  And we need it now.

WV American Water’s secrecy continues

Back in December, the Public Service Commission told WV American Water that it had redacted (made unavailable to the public) too much of the information that it had provided in the PSC’s investigation of the water company’s response to the Elk River leak. The Commission ordered WV American Water to try again, and submit new public versions of the documents with fewer redactions.

Here is the new public version of WV American Water’s Emergency Preparedness Manual.

One thing we do know now is how out-of-date this manual is. According to this document, Joe Manchin is Governor of West Virginia and Michael Shaw is on the Public Service Commission (he was replaced by Michael Albert in 2007).

The cover letter that WVAW’s lawyers submitted to the PSC helpfully explains their criteria for what they blacked out of the document:

the Company has retained many previous redactions, which generally involve process descriptions (how things are to be done), non-obvious actions and directives, descriptions of threats and other business/service interruption concerns, and titles or positions of actors with assigned responsibilities in certain situations.

 
In other words, anything one might want to know about how things were supposed to be handled in a crisis, and by whom, is still confidential. If you look at pp. 26-27 of the Emergency Preparedness Manual (dealing with “Contamination of Raw Water Supply”), you will see that they followed their guidelines quite well.

Throughout the PSC investigation, WV American Water has repeatedly hid behind homeland security as a rationale for its excessive secrecy. But their big security risk is something we already know: they have no back-up for their single intake.

New resource on water crisis and WV American Water

Check out www.wvwaterhistory.com, a new website launched today to present the results of an independent research project into the water crisis and the history of WV American Water. According to the press release,

An online interactive documentary launches today at www.WVWaterHistory.com, telling the history behind not only this water crisis, the water company in question, but West Virginia’s long history of water crises, chemical spills and poisonings. The website will serve as a resource for citizens, reporters, and researchers to learn about the roots of 2014’s water crisis and its diverse impacts. The website relies on maps, data, letters from jail and five interviews each from a different perspective on water security and crises in West Virginia.

 
The website provides an overview of the early history and expansion of WV American Water, which led to the situation of 300,000 people on one intake, and also provides stories about the disproportionate impact of the water crisis on vulnerable populations.