CDC visits West Virginia, but no medical monitoring yet

The Gazette had a couple articles last week (here and here) on the failure to come up with an adequate medical monitoring program for the population impacted by the Freedom spill.

In July, the Gazette reported that CDC had promised to “send a team to West Virginia within the next two months to help state officials determine what sorts of long-term health monitoring is needed for residents exposed to leaked chemicals,” according to the Gazette. The CDC did not promise any funding for monitoring.

The CDC team came to WV this past week and, according to a press release from the Department of Health and Human Resources (DHHR), “has committed to partnering with DHHR to develop plans that will allow the state to monitor a number of health outcomes over a long-term period. While this will not be directed toward the specific population involved in the chemical spill, it will allow health officials to closely monitor any significant changes or “spikes” in health care indicators. The monitoring is not on an individual level or even a specific event level, but it will closely monitor the overall health indicators in the state.”

This language is pretty vague, but it’s quite clear that the CDC and DHHR are not planning any medical monitoring program to track individuals exposed to crude MCHM and PPH.

This failure to come up with an adequate plan for medical monitoring seems to be at least as much a failure of the state government as the CDC. Although the Gazette article points out that SB 373 requires DHHR to “endeavor to engage” the CDC in health studies, the legislature never bothered to provide any funding for health studies. (Where did the money go?) Given that the WV government itself hasn’t ever demonstrated that it thinks medical monitoring is a priority, and given that the Tomblin administration is attacking the federal government left and right on many other issues, perhaps it shouldn’t be a surprise that providing WV with federal assistance is not a huge priority.

DEP issues new guidance on SB 373 implementation

Bill posted last week on legislative efforts to undermine SB 373. Several legislators, mainly those representing natural gas interests, called for a special session of the legislature to roll back the implementation date of SB 373, arguing that the January 1, 2015 deadline for tank owners to complete inspections of their above ground tanks was too strict. Of course, there is a very real possibility that a special session would also lead to other changes to weaken SB 373.

This week, DEP issued an “interpretive rule” which looks like it will eliminate the “need” for a special session. An “interpretive rule” is a rule that provides information regarding the agency’s interpretation of the rule. In this case, DEP has decided to divide above ground storage tanks into three categories: “Level 1″ tanks, which include all tanks in the zone of critical concern of a water system, are those that pose the greatest risk to the public; “Level 2″ tanks pose less risk; and “Level 3″ which pose the least risk, due to their size, location and/or contents. The rule states that the initial inspection of Level 2 and Level 3 tanks (the inspection that has to be conducted before January 1st) can be conducted by the tank owner or operator. Level 1 tanks still must be inspected by a qualified professional engineer or person certified to perform tank inspections. Inspections in future years are not covered by the interpretive rule.

Tanks regulated under SB 373 are also required to produce a Spill Prevention Response Plan. Under the DEP’s guidance, Level 2 and 3 tanks will be able to use an existing Groundwater Protection Plan to meet this requirement. (The coal industry had previously argued in its comments to the DEP that it should be exempted from SB 373 entirely because coal operations are required to have Groundwater Protection Plans).

It looks like the governor and the DEP were able to head off the push for a special session to introduce new exemptions into SB 373. But the regular legislative session starting in January 2015 will give industry another opportunity to push for changes. As stated by WV Rivers Coalition’s director Angie Rosser in the Gazette, “The interpretive rule is a practical step… Self-inspections for most tanks this first round is not ideal, but it’s better than delaying inspections altogether. Moving forward with the permanent rule, we need to make sure adequate accountability measures are in place for inspections and spill plans.”

WV American Water opposes federal settlement that could fund help for local area

This is a complicated situation, so you will have to follow some of the links in this post to get the details.  Here is the basic outline:

  • Shortly after the Freedom Industries spill in early 2014, a number of affected citizens, businesses and government agencies sued Freedom Industries and other parties for damages in the federal Southern District Court in Charleston.
  • In June, AIG Specialty agreed to pay an insurance claim to Freedom Industries of $2.9 million pursuant to Freedom’s insurance policy with AIG.  Here is a link to Ken Ward’s article on the insurance settlement in the Charleston Gazette.
  • In July, the lawyers for the plaintiffs in the federal case announced that they had reached a tentative agreement with Freedom Industries to use some of the AIG $2.9 million to settle the federal case, and use the AIG money to fund services to help people affected by the Freedom spill.  The lawyers also announced that they would take no fees from the settlement amount.  Here is a link to Ken Ward’s article which provides details of the federal court settlement and how it would be implemented.
  • In September, West Virginia American Water announced that it opposed the federal court settlement, because it wanted a big chunk of the AIG money for itself.  Here is a link to the AP story on WV American Water’s opposition to the federal court settlement.

The overall situation is complicated because there is also a case in federal bankruptcy court to liquidate all the assets of Freedom Industries and settle claims by Freedom’s creditors in that case.  WV American Water is a creditor in the bankruptcy case with significant claims against any money that comes into Freedom Industries’ bankruptcy estate.  Because the $2.9 million paid by AIG to Freedom is part of that bankruptcy estate, the judge in the bankruptcy case must get all the claimants in that case to allow a big part of that $2.9 million to go toward settling the federal damage suit in federal circuit court.

WV American Water executives, and their bosses at American Water Works, care about their company profits and shareholder dividends.  The health and safety of WV American Water’s customers and the people of the Kanawha Valley are hardly their highest priority.

 

Governor and legislative leaders begin SB 373 roll back

Last Tuesday, Ken Ward described the attack being mounted on the early phases of the implementation of SB 373, the above ground storage tank and source water protection bill passed unanimously by the WV Legislature in its 2014 session.  That attack seems to be coming primarily from Senate President Jeff Kessler and House Speaker Tim Miley.

Ken provided more details of the controversy in his post on Sustained Outrage, his blog at the Charleston Gazette.  He quotes from the joint statement from Mr. Kessler and Mr. Miley:

While we are extremely proud of the comprehensive regulatory legislation produced earlier this year to protect drinking water for our state citizens, it has become apparent that the Jan. 1, 2015 deadline for these inspections is unattainable. Extending that deadline will allow the state Department of Environmental Protection to put in place, with public input, agency rules to fairly and effectively govern the inspection and certification process.

Any continued delay in taking action on this matter only causes uncertainty within affected industries and the families that rely on them for employment.

Meanwhile, the DEP will move forward with creating an inventory and conducting a risk assessment of above ground storage tanks statewide.

Mr. Ward then goes on to explain how the call for a special legislative session to delay implementation of SB 373 is being portrayed in WV’s industry-friendly media outlets:

The usual suspects among our state’s media outlets are right on top of this. Hoppy Kercheval is all over this, and the MetroNews coverage sticks pretty close to his talking points:

As of now, as many as 40,000 tanks in West Virginia must be registered with the state by Oct. 1 and certified inspections of those tanks have to be completed by Jan. 1.  The state Department of Environmental Protection has not yet finalized the inspection protocols and, DEP officials have said, it could be December before those guidelines are available.

After appearing at times to actually care about drinking water protections, the Daily Mail editorial page is back to its old self, and repeating the same misinformation West Virginians are getting from MetroNews:

But the biggest issue is the uncertainty facing storage tank operators as the Department of Environmental Protection, the agency charged with enforcing the law, has yet to define the inspection parameters for storage tanks. Once it does, operators of the estimated 40,000 storage tanks affected by the law are unlikely to have time to complete their inspections by the Jan. 1 deadline.

And he concludes:

It’s simply false to say that DEP has not yet issued “inspection protocols” or defined “the inspection parameters.” Officials at DEP, working very hard under tough deadlines and constant pressure from industry, published guidance for tank owners spelling out what should be examined in these inspections. It’s right here on the agency’s website. There’s a checklist for what the inspections should include and there are forms (see here and here) to use in certifying to DEP that you’ve done these inspections and your tanks are safe.

And DEP was very, very clear about how this is going to work for the initial inspections due Jan. 1 and for future annual inspections:

For the certification due on or before January 1, 2015, compliance with a nationally recognized tank standard such API or STI following the attached checklist shall be deemed compliance with the requirements. Subsequent Annual Certifications will be required to comply fully with legislative rules promulgated by the Secretary.

And if you read SB 373, it suggests that this sort of path is what was intended. In creating the new above-ground storage tank regulatory program, lawmakers said this about chemical tank safety standards and other parts of that program:

The secretary shall promulgate for review and consideration by the West Virginia Legislature legislative rules during the 2015 Regular Session of the West Virginia Legislature, on all matters related to this article.

Despite that language, lawmakers also said, concerning annual tank inspections and certifications by experts hired by tank owners:

The certification form shall be submitted to the secretary  on or before January 1, 2015, and each year thereafter.

So, while it’s true that DEP hasn’t yet written the rules that will eventually govern chemical tank safety standards, agency officials have issued “protocols” and “parameters” that the industry can follow in making its initial inspections and certifications.

So as Ken says, there really isn’t a big problem here.

In his August 26 Gazette article linked above, Ward indicates that Gov. Tomblin and DEP Secretary Randy Huffman are also waffling on the SB 373 roll back:

After the meetings, Stadelman said that a special session “is one possibility” but that the administration is considering other options to address concerns about the deadline and that “no decision has been made.” Stadelman said the governor is unlikely to call a special session unless legislative leaders agree to the agenda beforehand, and that Tomblin would be supportive only of “very narrow” changes, not major modifications in the new law.

Earlier Tuesday, Huffman said he was personally supportive of a special session that would push back the Jan. 1 deadline for tank owners and operators to have tanks inspected and certified and have reports of those certifications filed with the Department of Environmental Protection.

Huffman noted that his agency has yet to make public a draft of the proposed standards for safety and integrity of chemical storage tanks, making it difficult for tank owners and operators to know what standards their tanks have to meet. Huffman said pushing back the Jan. 1 deadline would give more time for lawmakers to consider other industry concerns about the legislation during the 2015 regular session.

DEP staffers have been working hard to complete a proposed rule, Huffman said, but are also trying to build in additional time for more public review and comment before a final version is written.

“From a regulator’s standpoint, it’s not a practical deadline,” Huffman said of the Jan. 1 certification mandate. “The politics of it aside, it’s a logistical issue.”

- See more at: http://www.wvgazette.com/article/20140826/GZ01/140829430#sthash.Du967jLG.dpuf

After the meetings, Stadelman said that a special session “is one possibility” but that the administration is considering other options to address concerns about the deadline and that “no decision has been made.” Stadelman said the governor is unlikely to call a special session unless legislative leaders agree to the agenda beforehand, and that Tomblin would be supportive only of “very narrow” changes, not major modifications in the new law.

Earlier Tuesday, Huffman said he was personally supportive of a special session that would push back the Jan. 1 deadline for tank owners and operators to have tanks inspected and certified and have reports of those certifications filed with the Department of Environmental Protection.

Huffman noted that his agency has yet to make public a draft of the proposed standards for safety and integrity of chemical storage tanks, making it difficult for tank owners and operators to know what standards their tanks have to meet. Huffman said pushing back the Jan. 1 deadline would give more time for lawmakers to consider other industry concerns about the legislation during the 2015 regular session.

DEP staffers have been working hard to complete a proposed rule, Huffman said, but are also trying to build in additional time for more public review and comment before a final version is written.

“From a regulator’s standpoint, it’s not a practical deadline,” Huffman said of the Jan. 1 certification mandate. “The politics of it aside, it’s a logistical issue.”

Huffman’s willingness to delay implementation to allow industry to make changes to the law in the 2015 Legislative session is a clear indication that Gov. Tomblin and Sec. Huffman are willing to entertain many more changes then just delaying tank registration.  It looks like a clear invitation to lobbyists from the chemical, coal, oil and gas industries to rewrite last year’s law.

Business owners in Charleston are not happy about this new threat to protection of our state’s water.  WV Public Broadcasting reported that leaders of the WV Sustainable Business Council oppose a special session:

Co-founder of the West Virginia Sustainable Business Council Nancy Ward says pushing back the deadline won’t help her business regain the customer trust it lost during the water crisis.

“Weakening the bill or pushing back deadlines [won’t help],” Ward said.

Jeni Burns, Ward’s Sustainable Business Council co-founder, said at Friday’s meeting, Huffman presented his department’s proposal for rules to regulate above ground tanks.

The system includes three levels of classification with regulations for each, but representatives of the DEP didn’t respond to requests for a more detailed explanation.

The group is working to avoid a special session by fixing the unintended consequences of the legislation and addressing the concerns of interested parties through rulemaking.

“If we go into special session, we kind of leave it up in the air for whatever to happen,” Burns said, “but if we can sit down around the table and look at the best interest of everybody they represent and try to come to a solution, I think that’s better in the long run for West Virginians.”

New, delayed schedule in PSC investigation of WV American Water

A few weeks ago, the PSC issued an order suspending the general investigation until the dispute between the parties about what information WV American Water had to turn over to the PSC could be resolved. The resolution of that dispute took a little more than two weeks. The PSC’s order yesterday rescheduling the case announced a delay of about four months. Here is the new schedule:

  • WV American Water’s supplemental testimony: September 25
  • Other parties’s testimony: November 6
  • All parties’ rebuttal testimony: January 20, 2015
  • Hearing: February 10-12, 2015

 
With the hearing now in February, this probably means that the Commission will not issue an order until April 2015, at the earliest.

PSC Commissioner Ryan Palmer resigns

Big news out of the Public Service Commission yesterday.

Commissioner Ryan Palmer resigned to take a new position at the Federal Communications Commission in Washington, DC. Mr. Palmer’s departure leaves a gaping whole on the Commission. Mr. Palmer has been a strong advocate for ratepayer interests, taking the unusual step of writing a dissenting opinions in a recent high profile case (see here and here). The loss of Mr. Palmer is bad news, not just for the investigation of WV American Water but for all cases before the PSC.

Immediately after Mr. Palmer announced his resignation, the Public Service Commission issued an order announcing a delay in the general investigation AND PSC Chairman Mike Albert’s decision to recuse himself from the case. That leaves just one Commissioner, Jon McKinney, to preside over the general investigation until someone else is appointed by the governor. Mr. McKinney, a former manager at the Monsanto plant in Nitro, has established himself as an uncritical champion of utility interests on the Commission. Mr. Albert could have recused himself at any time in the past three months, but that would have meant leaving the investigation to both Mr. McKinney and Mr. Palmer.

These events leave the PSC investigation in a bizarre situation. Mr. McKinney’s term expired in 2011. He has been occupying his seat since 2011 without having been officially re-appointed by the governor. This is a perfectly legal situation; Mr. McKinney is allowed to continuing serving in his post until he is re-appointed or someone else is appointed to replace him.

In theory, PSC commissioners are appointed for six-year terms so that they can be relatively independent from the governor’s office; unlike some gubernatorial appointments, they serve for terms, rather than serving at the will and pleasure of the governor. But not Mr. McKinney, who could be replaced at any time.

Now the governor has two seats he can fill – Mr. Palmer’s and Mr. McKinney’s. Yesterday’s Gazette article quotes a spokesperson from the governor’s office stating that the delay in the investigation gives the governor more time to appoint someone to replace Mr. Palmer. Who will he appoint?

WV American Water ordered to turn over planning documents to PSC

Today, the Public Service Commission issued an order requiring West Virginia American Water to turn over documents that it had previously refused to disclose.

On Monday, the Commission held a hearing on the dispute between West Virginia American Water and the other parties to the Commission’s investigation – Advocates for a Safe Water System, the WV Sustainable Business Council, and the PSC’s Consumer Advocate Division. Those parties had all filed “motions to compel” asking the Commission to order WV American Water to provide meaningful answers to questions that those parties have raised in the case. WV American Water has so far refused to provide any documents pertaining to its emergency planning, or lack thereof.

In a document filed with the Commission on Wednesday, the water company insisted that everything having to do with its emergency planning is confidential under the 2002 Bioterrorism Act. The Bioterrorism Act requires all water utilities serving more than 3,300 customers to complete vulnerability assessments, assessing the vulnerability of their system to intentional terrorist acts. Such assessments are indeed confidential. In its filing on Wednesday, WV American Water insisted that all of its emergency planning is somehow derived from its assessment of vulnerability to intentional terrorist acts:

Documents in the Company’s possession that discuss infrastructure (e.g., pipes and conveyances, operation and maintenance), prevention of contamination (e.g., physical barriers, collection, treatment, testing, storage, distribution, automated systems), contingency planning, alternative water sources, and emergency response are either “contained in” or “derive from” the Company’s assessment of system vulnerabilities and should not be loosed heedlessly into the public realm.

 
There are so many bizarre things about this statement it’s hard to know where to begin. First of all, I would note that West Virginia American Water’s sourcewater protection plan for its Fayette County Regional Water System is publicly available (thanks to a Freedom of Information Act request by Plateau Action Network) and contains information about contingency planning. Secondly, it’s a bit strange to imagine that WV American Water could have an emergency plan or contingency plans that are not shared with local emergency planning officials or local health department officials – how useful could such a plan be?

And finally, nobody was suggesting that sensitive information be “loosed heedlessly into the public realm.” All other parties to the case were willing to sign a confidentiality agreement so that the Commission and parties could make use of confidential information that could not be released publicly.

Fortunately, the PSC did not buy the water company’s insistence on secrecy. The PSC seems to believe that emergency planning and preparedness at the time of the spill are, in fact, relevant to its investigation of the company’s response to the spill. The PSC ordered West Virginia American Water to answer the majority of the questions that it has refused to answer thus far – including questions relating to the company’s emergency plans, contingency plans, and sourcewater protection plans that were in effect as of January 9th. The PSC is allowing the water company to file some of this information as confidential, and the PSC will ultimately make the decision as to whether the information that the company files on a confidential basis actually needs to be withheld from the public.

The PSC also indicated in its order today that it believes that part of its duty in this investigation is to look towards the future and order changes to WV American Water’s operations:

The Commission does not make a determination regarding the reasonableness or unreasonableness of practices, acts or services under W.Va. Code 924-2-7 for the mere purpose of making a determination regarding reasonableness. The statute instructs that if the Commission finds practices, acts or services of a public utility to be unreasonable,
then the Commission must order reasonable practices, acts or services to be followed in the future.

Ken Ward digs up history of WVAW’s past decisions

Last weekend, Ken Ward filed two excellent accounts of the series of bad decisions by WV American Water and WV state regulators that led to the January 9 water crisis.  Saturday’s story focused on decisions, going back to the 1960s, that led to WVAW having only one intake on the Elk River, down river from the then Pennzoil tanks that were recognized at the time as a threat to Charleston’s water system.  Sunday’s article detailed the repeated failure of WV American Water to comply with requirements by the WV Bureau for Public Health that they identify hazards upstream from their water intake and develop a plan for handling chemical contamination.

As Mr. Ward explains in Sunday’s story:

Back in April 2006, officials from West Virginia American Water told state regulators they were planning to review the Elk River watershed to find out what potential contamination sources were upstream from their Kanawha Valley water treatment plant.

Water company officials told the state Bureau for Public Health the same thing in August 2006, and again in March 2008, state records show.

Three times over a two-year period, West Virginia American officials marked a “P” — meaning “Planning to do” — next to a question about whether the company was going to “review” the treatment plant’s watershed “for potential contaminant sources.”

The review was not completed — and it still hasn’t been.

In his Saturday story, Ken went back into the records of the PSC case from 1969 that approved plans for the then new water plant that WV American Water was planning to build at its current location.

When West Virginia American Water built its Kanawha Valley drinking water plant 45 years ago, the company dropped a plan that would have kept an existing intake near Coonskin Park, upstream from an industrial facility that would later become Freedom Industries, according to state records and new federal court filings.

West Virginia American got approval from what was then known as the West Virginia Department of Health for a single river intake at the new treatment plant site on Aug. 15, 1969, just a month after the state Public Service Commission issued an order that appears to have contemplated two Elk River intakes — the then-existing Coonskin intake and a new intake at the treatment plant.

The final plans for the treatment facility excluded a third intake. West Virginia American had proposed building an intake on the Kanawha River upstream from Belle, but the PSC rejected that idea after state health officials ruled that the Kanawha’s water was not “suitable” for drinking, according to state records from the PSC and the health department.

The Kanawha River intake was vetoed by the state Dept. of Health, but Ken could find no explanation in the records of why the Coonskin intake, which was functioning at the time the new plant was planned, was shut down, leaving WV American Water with a single intake downstream from the Pennzoil (now Freedom Industries) tank farm.

Ken Ward is doing very important work with these articles.  He is digging up the history that state politicians and regulators are trying to sweep under the rug.  The fact is that the Freedom disaster was the result of a perfect storm of corporate and government failures.  Thank goodness that the Charleston Gazette and Ken Ward are telling this story.

These two articles are must reading for everyone who wants to understand why we are in the mess we’re in today.

Water company officials told the state Bureau for Public Health the same thing in August 2006, and again in March 2008, state records show.

Three times over a two-year period, West Virginia American officials marked a “P” — meaning “Planning to do” — next to a question about whether the company was going to “review” the treatment plant’s watershed “for potential contaminant sources.”

The review was not completed — and it still hasn’t been.

- See more at: http://www.wvgazette.com/article/20140817/GZ01/140819358#sthash.3QeOTzKF.dpuf

Public Service Commission hearing on Monday

Next Monday (8/18) the Public Service Commission will be holding a hearing to resolve the dispute between West Virginia American Water and other groups that are asking the water utility to provide more details in the ongoing PSC investigation of the water company.

As we posted previously, the PSC’s Consumer Advocate, the WV Sustainable Business Council, and Advocates for a Safe Water System have all filed “motions to compel” asking the Commission to order WV American Water to provide meaningful answers to questions that those parties have raised in the case. Many of the questions that WV American Water has refused to answer have to do with the water utility’s emergency planning (or lack thereof).

Whatever decision the Commissioners make after Monday’s hearing will have a big impact on the scope of this investigation. If the Commission decides that questions about WV American Water’s emergency plans are off the table, then they are effectively signaling that they are not going to order any changes to the company’s planning practices.

Attending Monday’s meeting would be a good opportunity to see first-hand how the PSC operates and how the Commissioners are approaching this case. The hearing will begin at 9:30am on Monday at the PSC (201 Brooks St).

WVAW shareholders need to accept responsibility for their role in water contamination

On July 28, Tom White, an attorney with the WV PSC’s Consumer Advocate Division (CAD) filed a motion to compel WV American Water to answer questions about its emergency planning at the time of the Jan. 9 water system contamination.  This motion contains the following passage:

CAD is not interested in punishing WV A WC or re-litigating any prior cases surrounding the intake or the Elk River plant site. CAD is interested in what steps the Company took to anticipate, prepare, and plan for the possibility of such a contamination event which is directly relevant to how the Company reacted to the spill.Why does this matter? In its last rate case (Case No. l2-1649-W-42T), WVA WC agreed to stay out until at least 2015. Parent company American Water Work’s first quarter SEC 10Q filing (p. 23 attached, Ex. B) indicates that WV A WC has spent $5.9 million in spill remediation costs. If the Company took little or no steps to anticipate and plan for such a catastrophe it suggests that the Company was taking a risk that such a spill would never happen. CAD suggests that is the type of risk that should be borne by shareholders, not ratepayers. In other words, this is the type of risk-taking that is an “unreasonable practice,” and ratepayers should not be asked to pay for it. If the point of this General Investigation is to determine whether the Company acted reasonably, CAD will almost certainly be precluded from revisiting that question in the upcoming rate case. [emphasis mine]

Mr. White refers to the $5.9 million cost that WVAW’s parent company American Water Works identified as the first quarter damage to the company done by the Jan. 9 spill in its Form 10-K filing that the company made with the SEC.  American Water Works’ second quarter 10-K has raised that total cost to $10.9 million.

Note the bolded section of Mr. White’s statement above.  If WVAW (and its parent American Water Works) had no plan for how to deal with contamination of its water intake in Charleston, then the company (and its owners, its shareholders) was betting that it wouldn’t need to take costly steps to prevent it from devastating its water system and poisoning its customers.  WVAW’s customers were not in a position to make that decision about accepting that risk.  The managers of the company and its shareholders were in that position.

I agree with Mr. White that the shareholders made a decision to ignore the recommendations of the WV Bureau for Public Health, whose 2002 source water assessment report found WVAW’s system “highly susceptible” to contamination and recommended that the company develop a source water protection plan.   WVAW’s customers had no part in that decision to ignore the Bureau for Public Health.

WVAW, in its next rate case, will certainly try to recover some or all of that cost, which now stands at $10.9 million, from its customers.  As Mr. White says, the PSC needs to determine the extent of the risk that WVAW’s shareholders pushed off onto their customers, so that the PSC can determine how much of the cost of the disaster must be paid by rate payers and how much should be accepted as the shareholders’ responsibility.  Considering that rate payers had no part in the decision, its clear that they should not have to pay for the costs of WVAW’s mistakes.