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.

Community members still serious about fixing our water

Bill’s post last week analyzed who is serious about fixing our water system a year after the water crisis. The community members who came out for four hours last Saturday morning for Advocates for a Safe Water System’s training were about as serious as it gets about organizing to make sure something like this never happens again.

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For more information about who Advocates for a Safe Water System is and what they’re doing, check out this video by Keely Kernan:

Public hearing, comments due Wednesday on DEP tank rules

Comments are due Wednesday on the DEP’s proposed rule for regulating aboveground storage tanks. Comments can be emailed to WVDEPtankrules@wv.gov (with “Aboveground Storage Tank Comments” in the subject line) or mailed to:

WVDEP Public Information Office
Aboveground Storage Tank Comments
601 57th Street, SE
Charleston, WV 25304

There will also be a public hearing on Wednesday at 6pm at DEP Headquarters, 601 57th Street, SE, Charleston.

Here are some talking points for your comments:

  • Reinstate the more inclusive Level 1 tank definition that was in the rough draft of the rule;
  • Maintain the rule’s regulation of Level 2 tanks;
  • Establish registration fees that adequately fund and staff the program;
  • Provide an opportunity for public notice and comment on certificates to operate; and
  • Increase bond amounts so that they cover potential liability of a tank failure.

Too much regulation? Really? Then how could this happen?

The theme of this year’s Republican leadership at the WV Legislature seems to be that WV business is “overregulated.”  Jonathan Mattise of the AP filed this story last Friday.  There isn’t much evidence in this piece that current WV regulation is even minimally effective.

A few towns over from the tank farm where Freedom Industries leaked a coal-cleaning chemical into the drinking water of 300,000 West Virginians last year, a new company run by former Freedom employees is being cited for similar environmental violations.

State regulators have cited the new firm, Lexycon, eight times since September for pouring chemicals without a permit, lacking proper “last-resort” walls to contain spills and hosting tanker-trailers full of unknown chemicals, among other infractions, according to records reviewed by The Associated Press.

Inspectors even found the same little-known chemical that had leaked from Freedom’s site into the water supply for Charleston, West Virginia, despite the Lexycon owner’s promise to a federal judge that his company wouldn’t touch it.

Some of these infractions still haven’t been addressed, despite three site-wide inspections and dozens of smaller visits by regulators from the West Virginia Department of Environmental Protection since May, state reports show.

Yup, you read that right.  People who were involved with Freedom Industries, the now bankrupt company that skipped out leaving Charleston’s businesses and residents stuck with millions of dollars in damages, have been allowed to set up a new company right down the Kanawha River, ON THE RIVER BANK.  Despite the fact that these people have repeatedly lied to WV regulators, WV DEP can’t shut this operation down.

The real kicker is that this new site, near Nitro, has a failed secondary containment structure, just like the Freedom site on the Elk River.

However, state environmental inspectors soon recognized shoddy safeguards at the Nitro site, too: Containment walls riddled with holes that could let materials seep into a stormwater ditch that drains into the Kanawha.

These people are also currently under indictment in Federal court for violations of the Clean Water Act in the Freedom disaster.

Freedom ultimately filed for bankruptcy. Just three months after the leak, Lexycon was founded by David Carson, a chemical firm owner who had done business with Freedom and bought the Nitro location.

Before he approved the transaction in May, U.S. Bankruptcy Judge Ronald Pearson called it “a real positive in the case” that Lexycon was hiring former Freedom employees.

“They’re the ones that know the business,” Mark Welch, chief restructuring officer during Freedom’s bankruptcy case, said in court. “If I was buying, I would want to make sure I had the best assets available.”

At least three prominent players at Freedom, including two who now face federal charges over the leak, went on to have strong ties to Lexycon:

| Former Freedom president and co-owner Dennis Farrell, who faces up to three years in prison on pollution charges over the leak, consults now for Lexycon, his lawyer, Michael Carey, said during an arraignment last week. Farrell works in a sales role but isn’t officially an employee and has no ownership stake in Lexycon, Carson testified.

| Robert Reynolds, the Freedom environmental consultant who also is charged in the leak, greeted state inspectors onsite as a Lexycon representative in August, their report shows. Welch said Reynolds has since left the company. He was charged in a document called an “information,” which generally means someone is cooperating with an investigation.

| Lexycon President Kevin Skiles had owned 5 percent of Freedom’s shares and was a Freedom research and technology official.

According to bankruptcy court filings, Carson is a friend of Gary Southern, the former Freedom president who angered many by swigging from a bottle of water and bemoaning his long day at a televised news conference the day after the leak.

Too much regulation?  Not when it comes to Lexycon.

One year out. Who is serious about fixing the water crisis?

The one year anniversary of the January 9, 2014 disaster has passed.  Back on January 14, 2014, I posted a piece about the crisis over on The Power Line about the situation.  I wrote in that post how our state’s leaders are not really serious about creating safe communities in our state in which people can live without fear for themselves and their families.

We have had a year to find out who is serious about WV’s future, and who is not.  Last week, Ken Ward continued his excellent work on the continuing water crisis with an excellent summary of how events have unfolded since January 9, 2014.  His account provides a great starting point for our analysis.

If WV politicians, regulators and businesses were serious about protecting West Virginians there would have been significant change in the last year in the way regulators regulate, laws on the books and the way businesses, in particular WV American Water Company, the utility that allowed its water system to become contaminated, are operating.  Have we seen that kind of change?  By and large, we have not.

 

  • Has the US Congress tightened the regulation of dangerous chemicals and funded new toxicity research to identify public health impacts of the tens of thousands of chemicals for which almost no research has been done?  As Ken Ward notes in his article: “After the Freedom leak, there was much talk in Washington that Congress might finally get around to reforming the Toxic Substances Control Act, to remedy this lack of information.  So far, though, that reform remains stalled.”

 

  • Has the WV Legislature passed laws tightening state regulation of threats to public drinking water?  In the 2014 legislative session, the Legislature passed SB373 designed to tighten regulation of above ground storage tanks and mandate source water protection plans for all water utilities in WV.  The WV DEP, to its credit, has done a good job of implementing the initial round of tank registration and mandated inspection, although the agency estimates that 20,000 tanks may still be unaccounted for.  However, last summer, the Democratic leadership in the House, along with oil and gas industry lobbyists pushed to roll back protections in SB373.  Rural water systems also pushed to be exempted from source water protection plan requirements.  Mr. Ward looks ahead to the new legislative session: “Still, industry lobbyists and the new Republican leadership in the state House of Delegates and Senate have made it clear they’ll be looking at ways to revisit the legislation and eliminate some of its requirements that various groups — led by the oil and gas industry — have said are too onerous. Already, during last month’s interim meetings, some lawmakers began a move to eliminate the DEP’s longstanding policy of enforcing drinking water standards on all rivers and streams statewide, even if they aren’t currently used for public drinking water service.”

 

  • Has Gov. Tomblin improved the responsiveness of his administration based on the experience of the water crisis?  Gov. Tomblin’s office has issued an After Action Review which includes a lot of welcome self-criticism of most aspects of the misleading and even dangerous advice that came from the Governor’s Office.  Gov. Tomblin has replaced the bumbling former director of the Bureau, Letitia Tierney, with former Kanawha-Charleston Public Health Department director Dr. Rahul Gupta.  Dr. Gupta was the lone source of honest, accurate and medically sound advice throughout the entire water crisis, so his appointment to replace Dr. Tierney is a huge improvement.  As Ken Ward points out in his article, however, Tomblin’s Homeland Security Director Jimmy Gianato continues to hide vital information from emergency agencies and the Bureau for Public Health that would go a long way toward creating a unified and fully informed response plan for future disasters.  By contrast, Dr. Gupta has supported full inter-agency communication.  Gov. Tomblin and his Dept. of Environmental Protection Sec. Randy Huffman has so far strongly resisted attempts by legislators to roll back implementation of storage tank registration or change SB373.  Sec. Huffman recently restated his firm commitment to restoring the Kanawha River to Category A status, so that the river could be used as a secondary water source for WV American Water’s Charleston treatment plant.  The WV DEP has come out strongly in defense of the new Aboveground Storage Tank law and created a transparent public process for commenting on the rules to implement that law.  But it’s not clear that any of the enforcement problems that helped create the water crisis – a shortage of inspectors and a culture of under-regulation – are being addressed.  The DEP’s draft storage tank rules clearly are not serious about forcing storage tank owners to post bonds to cover the costs to clean up a potential spill, as the rules would have required Freedom to post a $9,600 bond to cover what looks to be a multi-million dollar cleanup.

 

  • Have the owners of Freedom Industries been held accountable for their responsibility for the disaster they caused?  Like most corporate criminals, the owners and officers of Freedom Industries have tried to evade their financial liability to the taxpayers and citizens of WV using US bankruptcy laws.  Within the past month, however, the FBI and federal prosecutor Boothe Goodwin filed criminal charges against the main officers of the corporation for fraud and violation of the Clean Water Act.  Criminal penalties levied in the event of verdicts or settlements might require these individuals to contribute their personal funds toward settling claims against Freedom Industries.  So far, the creditors’ committee in the Freedom bankruptcy case has not pursued the personal assets of these officers.  Criminal convictions could strengthen the case for pulling officers’ assets into the Freedom Industries bankruptcy estate, providing more money to pay damage claims.

 

  • Has WV American Water Company accepted responsibility for its role in the contamination of its water and has WVAW corrected its problems?  In December, WVAW announced that it had restored the gas chromatograph equipment that the company had removed in 2004 and has hired an additional technician to run it.  This equipment can analyze water that has come into the plant, but does not provide continuous monitoring of water outside the plant’s intake on the Elk River.  WVAW also announced in December that it has plans to install this kind of monitoring device, but continuous monitoring equipment is not operating more than one year after the Jan. 9, 2014 contamination.  WVAW has not taken aggressive steps to add a second water source or develop an extensive source water protection strategy.  The company appears to be waiting to act only on the basis of established deadlines or initiative by others.  WVAW has fought the disclosure of information about its unpreparedness before the Freedom leak throughout the current WV PSC general investigation.  WVAW has refused to acknowledge that its extremely high 35% leak rate or its failure to maintain adequate levels of stored water within its existing system were the main reasons behind the company’s claim that it could not close its Elk River intake, even for a short time, to allow the heaviest concentrations of the Freedom chemical plume to pass its water plant.  Unlike WV American Water, the Morgantown Utility Board and the Putnam Public Service District, both locally owned water utilities, have shown that their customers’ safety is their top priority.  They learned from the Kanawha Valley’s water crisis and have installed new equipment and, in the case of Morgantown, begun to develop new source water planning tools to better protect the public.

 

  • Have local government officials taken the initiative to make area residents safer?  Charleston city officials’ concern, after the immediate crisis faded, was to perform an image makeover to keep tourism marketing alive in the wake of the disaster.  County Commissions in the affected area have largely been silent about strategies for improving responsiveness or helping WVAW create a secondary water source or real time stream monitoring.  Local emergency agencies in the Kanawha Valley are the one exception to this complacency.  Emergency officials, who responded effectively and efficiently during the crisis, have pushed for more information and coordination in case another drinking water contamination happens again.

 

  • Have citizens gotten serious?  Citizens were very serious during the legislative session last year, when SB 373 got progressively stronger as it progressed through the legislature, thanks to citizen pressure.  Citizens have also been serious about putting pressure on WV American Water Company which – despite the failure of the state Public Service Commission to order any changes from the utility more than a year after the spill – has started to do a few of the things that citizens have been demanding all along.

 

So, after a year, we can see who is serious and who is not.  Gov. Tomblin’s administration appears to have learned some lessons, but still has problems with sharing information.  The Legislature, both past Democratic leaders and the new Republican majority, show signs of putting industry priorities over public safety.  Local governments have done little, but emergency agencies have a lot.  The federal prosecutor is moving to ensure justice for the victims of Freedom Industries.  WV American Water refuses to address many of the issues that surrounded the company’s failure to protect its water system from contamination.  Recent press releases indicate the company is finally moving in some of the right directions after a year of stalling and denial.

If a spill like the Freedom Industries leak occurred upstream of the WVAW intake happened today, particularly if the chemical had no color or odor, could we be able to avoid another mass contamination?  The answer to that question is still not clear.  That answer is not clear largely because the right people are still not serious about providing safe drinking water for all West Virginians.

State government releases candid assessment of failures; WV American Water not so much

Governor Tomblin’s office released an “After Action Review“, an assessment of the emergency response to the water crisis, on the one-year anniversary last Friday.

The report lays out a fairly comprehensive and honest analysis of what did and did not go well with the state’s response to the water crisis. The report identifies the WV Testing Assessment Project and Senate Bill 373 as positive outcomes. The report also identifies a number of flaws:

  • There was a lack of information about the health effects of MCHM and inconsistent information from the CDC about what level was “safe.”
  • The State “struggled at times communicating information effectively”
  • The flushing protocols were “not well vetted” and were not appropriate for all customers
  • Some state agency websites were “embarrassingly” out of date
  • The Tier II forms (provided to state and local emergency response officials under the Emergency Planning and Community Right-to-Know Act), which revealed the fact that MCHM was stored at the Freedom site, had not been disseminated effectively before the crisis. The report notes that the State Emergency Response Commission is in the early stages of making Tier II forms available electronically.

Overall, the report does a pretty good job, although it is lacking in some areas. The report emphasizes blame to federal agencies, particularly the CDC, for providing inconsistent information and adding to the state government’s communication problems. But the role of certain state officials in contributing to the dissemination of confusing and misleading information – including Bureau for Public Health Commissioner Tierney’s attribution of peoples’ symptoms to the flu, for example – is not directly addressed.

The report also cites the prior lack of regulation of aboveground tanks as a serious problem, though it does not go into the prior lack of regulatory enforcement as a problem (the Freedom site had not been inspected under its Clean Water Act permit for more than a decade). The report also does not address the failure to set up a medical monitoring program during the crisis.

The report does candidly note that the Governor’s secret industry-only stakeholder meeting to help draft Senate Bill 373 was a mistake. “In preparing the initial draft of the Aboveground Storage Tank Act, State officials should have solicited feedback from all parties, including environmentalists, instead of only vetting proposals with business and industry representatives,” the report says.

The appendix to the report includes self-assessment surveys completed by emergency responders, state agencies, and other entities (such as WV American Water) that were involved in the emergency response. Not surprisingly, WV American Water sees very little room for improvement in its emergency response. The Public Service Commission Staff’s review of WV American Water’s response to the crisis alleged more than 20 violations of the PSC’s water regulations, but WV American Water’s identified areas of improvement include only enhanced internal communications, improved coordination with government agencies on information provided to the public, updating their database of customer phone numbers, and “customer preparedness.” That is, the utility thinks its emergency response would have been improved if its customers had been better prepared by having more bottled water on hand. Although low levels of stored water in its system limited WV American Water’s ability to shut its intake on January 9th, the utility’s response is that customers should store more water.

January 2015 events

It is almost exactly one year after the January 9, 2014 chemical leak and water crisis. But the work to ensure that last year’s Senate Bill 373 does not get watered down is just beginning as the 2015 legislative session starts this month.

A number of events are planned for this month to commemorate the water crisis and to move forward with the work of making sure that something like this never happens again.

January 9: Chemical Leak Anniversary Commemorative Events

3:00 – 5:00 p.m. Citizen Education Workshops at the Culture Center on the WV State Capitol Grounds. Get the latest updates on current water issues and how you can be involved.
6:30 – 7:15 p.m. Honoring the Waters one-year anniversary candlelight vigil at the Kanawha River in front of the Capitol to mark the one-year anniversary of the MCHM chemical contamination of the drinking water of more than 300,000 West Virginians.
7:30 – 9:00 p.m. Reception and screening of Elk River Blues at the WV Culture Center Theater. This locally produced documentary film features West Virginians’ response to systemic failures that continue to threaten our water.
See Facebook event for more info.
 

January 14: Healthy Kids & Families Day at the WV Legislature

WV State Capitol
Check www.wvhealthykids.org for more details.
 

January 14: Be visible for clean water at the State of the State Address

House Chamber of the State Capitol, 7pm
The governor will deliver the State of the State Address in the House Chamber at the State Capitol in Charleston, WV. Everyone who can make it is encouraged to attend to put the governor and legislators on notice that we expect clean, safe water to be a priority for this legislative session!
 

January 17: Safe Water System Leadership Training

St. Marks United Methodist Church (900 Washington St. E, Charleston), 9am-1pm (lunch served)
Advocates for a Safe Water System will be hosting a leadership training to give you the knowledge and skills you need to become an advocate for an improved water system in the Kanawha Valley. Download flyer. Register here.
 

January 17: March and Rally for Clean Water Statewide

WV State Capitol steps (Kanawha Blvd side), 2pm
Statewide, threats to our clean water are increasing. Come learn about the threats and what you can do to take a stand for clean water!
 

January 17: After-rally dinner & fundraiser

Fireside Grill (upstairs from Little India, W. Washington), 5-8 pm
Come eat, drink, socialize, and participate in an open mic to speak your mind or sing your song after the Rally! A $15 minimum contribution is requested for dinner. Sponsored by AWARE: Artists Working in Alliance to Restore the Environment. Proceeds to the WV Water Roundtable.
 

January 23-24: Looking Forward – Summit on Chemical Safety in West Virginia

Participate in conversations about local chemical safety; Learn about successful models implemented in other states and solutions that address disproportionate impacts of chemical releases on communities of color and low-income communities. Be a part of local solutions to prevent water contamination. Sponsored by People Concerned About Chemical Safety with support from Appalachian Stewardship Foundation and the Unitarian Universalist Congregation. Register here.
 

See Facebook for more details about January events.

PSC investigation of WV American Water on hold – again

The PSC’s investigation of WV American Water is once again on hold due to a shortage of Commissioners.

Wednesday was Commissioner McKinney’s last day; McKinney had announced his retirement earlier in December. McKinney’s term had actually expired in 2011, but state law had allowed him to continue serving because the Governor did not appoint anyone to replace him.

Once again, the Commission is down to one Commissioner (the newly-appointed Brooks McCabe) in the investigation of WV American Water’s response to the January 9, 2014 chemical leak; Chairman Albert had recused himself from the case in August due to his history as a JacksonKelly attorney representing WV American Water before the PSC. Under West Virginia law, the PSC cannot take any action without a quorum of two commissioners, so the case is case is again stalled until the Governor appoints a replacement for McKinney.

The last action taken by the Commission in this case was an order issued on December 23rd that found that the water company had withheld too much information from the public when it redacted its confidential documents. For example, the order notes, “the 1-800 number for the Public Service Commission was inexplicably labeled as ‘Highly Sensitive Confidential Information.’” The order directs the water company to try again and re-file the documents with fewer redactions by January 16, 2015.

It is almost exactly a year after the chemical leak and the PSC’s investigation has been hampered both by high turnover at the Commission and by the water company’s own foot-dragging. Let’s hope that Governor Tomblin acts quickly to appoint a knowledgeable and public interest-minded commissioner.

Public comment period and public hearing for DEP aboveground storage tank rule

Last week, the DEP released its proposed rule for regulating aboveground storage tanks under Senate Bill 373. Public comments will be accepted through January 21st and can be emailed to WVDEPtankrules@wv.gov (with “Aboveground Storage Tank Comments” in the subject line) or mailed to:

WVDEP Public Information Office
Aboveground Storage Tank Comments
601 57th Street, SE
Charleston, WV 25304

There will also be a public hearing on January 21st at 6pm at DEP Headquarters, 601 57th Street, SE, Charleston.

Here are some talking points to include in comments:
1. The aboveground storage tank registry should be accessible to the public.
2. The aboveground storage tank regulatory program should be adequately funded and staffed through tank registration fees.
3. Significantly increase the bond amounts so that they cover the potential liability that would be incurred if the AST fails. Under the current proposed draft, the bond amount for the Freedom Industries’ 48,000-gallon MCHM tank would have been $9,600 – nowhere near the amount required to fully remediate the site.

WV American Water: Progress or PR?

Last week, WV American Water began sending this mailing to its customers.  There is a lot of talk in the mailer about all the wonderful things WV American Water has in store for us, but haven’t happened yet.  This list includes:

  • a fancy source water protection database that the company claims is the greatest ever,
  • an engineering study, still incomplete, to determine if a second water intake is feasible,
  • a public notification system,
  • installation of an early source water monitoring system,
  • and a new system for detecting leaks, which they sorely need given that they are losing 35% of their processed water.

All of these items have yet to happen, but the notification system will apparently be in place in early 2015.  Although the leak detection system is now in place, WVAW says nothing about whether they have reduced their shameful 35% leak rate.

WV American Water also described real progress in its mailer:

  • They have installed two gas chromatograph/mass spectrometers, and have added a technician to run them.  This is an important step but it only gets the company back to where it was in 2004, when WVAW removed similar onsite testing equipment.  At the time of the Freedom spill, the only onsite analysis available to WVAW technicians was taste and smell.
  • The early source water detection system, although the mailer gives no projected date for its installation, would be a huge step forward.  The company appears committed to installing something, the only question remains when.

So, while the investigation, research, etc. mentioned in the mailer is great, the only real hard progress that WVAW has made is the installation of the gas chromatograph/mass spectrometers.  Most of the rest is just computer software and hardware, and promises that something might happen in the future.

As we approach the one year anniversary of the Freedom disaster, we need more than promises.  WVAW has also taken most of these steps behind closed doors with no discussion with local leaders, its customers or the public.  As we know from the WV PSC general investigation, this is the way the company does business.  The mailer is the first the public has heard of any of these steps.

So far, so good, but we need more from WVAW, much more.