Responding to the Freedom Industries chemical spill
Dawn Miller, editorial page editor for the Charleston Gazette, has a clear summary of the failure of WV government officials in today’s paper. In three paragraphs, Ms. Miller sums up the state’s response to the water crisis very neatly:
But the governor, his public health staff and West Virginia American Water had long since lost the public’s trust, and they could not have done it more thoroughly if they had drawn up a plan first. In the early hours, first they weren’t sure what chemical was in the water. Then they couldn’t say what the effects are on human health, or what is considered a safe level.
Still, people deal with uncertainty. “I don’t know” is sometimes the only honest answer, and the public expected the professionals to figure it out and advise.
But when the flushing instructions came, they did not take into account large structures or people with septic tanks. Water company and state health officials encouraged people to use the water right away, only to learn that breathing the vapor and washing in it sent some people to hospitals and caused less severe symptoms in who knows how many others. And when people reported these concerns, for their pains they received a lot of doubletalk and insults.
And she concludes:
Of course, everyone has wanted the crisis to be over, to get back to normal. But — more wisely than their “leaders” — state residents don’t pretend all is well when it isn’t, or when they lack the data to make a determination. What no voter, taxpayer, ratepayer, householder, business owner or anyone else wanted was premature reassurance.
And that brings us to the other crisis. Sunday marks the two-month anniversary of the chemical spill. The next time there is a public health emergency — and there is always a next time — thousands of West Virginians will not trust their public health officials, even the diligent ones. Well-being and possibly lives may be at stake, and the professional, expert advice that the public needs and pays for will all be suspect. Their cautions, their recommendations, their prohibitions, all carry less trust than they did two months ago. This is a dangerous state of affairs.
I would go one step further than Ms. Miller, however. People in southern WV have lived with a permanent health and water crisis for decades. Their response, as shown clearly in census figures, has been simply to leave the state in large numbers. Now the cancer of failed regulation has reached into the state’s largest city.
The loss of businesses and people that we have seen in southern WV will no doubt spread into the Charleston area. It will eat away slowly and invisibly at the fibers of communities across the Kanawha Valley. That is also a very dangerous state of affairs, and there is little that re-branding and feel good marketing can do to stop it.
Community groups are organizing a rally at the capitol this Saturday, the last day of the session. This is from the invitation sent out by WV CAPE (Citizens Actively Protecting the Environment):
Our lives changed January 9 when MCHM spilled into the Elk River. The citizens of West Virginia have a voice and are invited to join a end of legislative session party for clean, potable water at the state Capitol. We compel all citizens to accept their opportunity to speak at the rotunda. The fight for a solid Senate Bill 373 has brought citizens together during the session, but this is just the first step in coming together as a community to insure that West Virginia water ways are clean for all of its citizens and visitors.
Clean Water is a civil right. The chemical leak adversely effected all of our citizens, businesses & our valued labor force. Join us, one last time during the regular session, to let your elected state representatives hear your voice.
The rally starts at 11am inside the capitol. Here is Facebook page.
If you have followed SB 373′s tortuous path through the WV Legislature for the past month, you have heard legislators whining about how the state has no money to spend on keeping our water safe. Who caused this problem?
Why, it was the Legislature and former Gov. Joe Manchin. Here’s how the Center for Budget and Policy’s Sean O’Leary explains it:
State lawmakers are struggling to close a big budget hole, but a close look shows the legislature dug that pit with business tax cuts over the last eight years. Sean O’Leary with the West Virginia Center on Budget & Policy pointed out that state spending has been basically flat for some time, but the tax cuts made since 2006 are part of what is causing a budget gap of more than $200 million next year.”We’re collecting less business tax revenue this year than we did nearly 20 years ago, even before you adjust that for inflation,” O’Leary said.
Revenue lost to cuts in the business franchise tax and the corporate income tax would just about equal next year’s shortfall, he noted.
O’Leary said the state created a structural problem in the tax and revenue system over the last eight years with big, permanent rate reductions and phase-outs that were unaffordable.
“It’s about $425 million for fiscal year 2015,” he said, “so that would be balancing the budget, plus some. But it was given away in tax cuts.”
As the chart below shows, revenue from the CNIT/BFT is expected to hit a 22-year low in FY 2012, dropping from $221.5 million in FY 1990 to just $173.5 million in FY 2012. It is important to recognize that these are nominal numbers, they are not adjusted for inflation or economic growth. While the CNIT/BFT made up 12.7 percent of general fund revenues in 1990, in 2012 it is expected to be just 4.3 percent. This number could fall even farther. With just two months to go before the end of FY 2012, April revenue collections from the CNIT/BFT are running about $10 million behind the original estimate.While there are several factors contributing to the long-term decline in business tax revenues – including the growth in tax credits, tax loopholes, and the shift toward S corporations - the central factor impacting the recent and projected decline of business tax revenue is the scheduled reduction of the corporate net income tax rate from 9.0% in 2007 to 6.5% in 2014 and the gradual elimination of the business franchise tax from 0.7% in 2007 to 0.0% in 2015 (see chart below).
As the graph below makes clear, the growth of the state’s two corporate taxes is dismal compared to sales and personal income tax growth over the last two decades. Personal income tax collections have tripled, growing from $517 million in FY90 to $1.6 billion in FY11, while sales and use taxes have doubled from $522 million to $1.1 billion.
Meanwhile, business taxes collections have only grown by a third – growing from $222 million in FY90 to just $303 million in FY11. If the CNIT/BFT grew at the same rates as the personal income and sales and use tax since FY90, the state would have collected $683 million or $487 million respectively in FY11 - a difference of $380 million or $184 million.
Notice in the above graph that the sharp fall in corporate tax revenue began in FY08 or between July 1, 2007-June 30, 2008. This was the same year that the business tax reductions were put into place. From FY08 to FY15, the state projects that the personal income tax will grow by 25 percent and the sales tax by 11 percent, However, the CNIT/BFT is projected to decline by 38 percent, from $388 million to $240 million. As we showed in our analysis of the budget last year, according to the WV Dept of Revenue the business tax reductions will reduce reduce revenue by close to $50 million in 2012 and nearly $200 million by 2017.This is clear evidence that the tax reductions are the central factor causing the projected decline in revenue.
And who benefited from these tax cuts that are now strangling our state? You guessed it, the very corporations that don’t want to be saddled with the costs of protecting our state’s resources, especially water.
So just as they have at the federal level, state tax cuts are starving the government and preventing us from protecting our state.
Update: Ken Ward has great in-depth discussion of the amendments and some of last night’s floor debate over on Coal Tattoo. For those of you who don’t understand the title of Ken’s post, it refers to the old saying in the WV legislature, “fat possums run at night.”
Late last night, the House of Delegates passed SB 373 after several hours of debate. There were many amendments made on the floor, and many that were defeated. Here is an update on some of the issues that we have been following here at Our Water WV:
The bill now moves to the Senate. If the Senate decides not to adopt the House version of the bill, a conference committee will be appointed to iron out the differences. That committee must conclude its work by midnight on Saturday, the last day of the session.
The House Finance Committee voted yesterday to weaken SB 373. The bill has now moved to the House floor for a vote. The final version of the bill that the House will be voting on is not yet posted on the legislature’s website, but Ken Ward has a good summary in the Gazette.
The Finance Committee removed language that the Judiciary Committee had introduced requiring medical monitoring (although, as we noted yesterday, the Judiciary Committee hadn’t provided a way to fund a medical monitoring program anyway).
Delegate Kevin Craig, vice president of Houston-based Natural Resource Partners, successfully introduced an amendment that removed one of the provisions that community groups had been pushing — that would have required potential contaminant sources in the zone of critical concern of a drinking water intake to obtain site-specific Clean Water Act NPDES permits.
The Finance Committee also removed language that would have required WV American Water to do more “early warning” monitoring at its Elk River intake.
Delegates can still introduce amendments “on the floor.” This could happen as early as today. Citizen groups are urging delegates to support amendments that would:
Find your delegate here.
In the early hours of this morning, the House Judiciary Committee passed SB 373. The text of the amended bill is not yet available on the legislature’s website, but the Gazette covered some details in this morning’s article. In addition to the changes to the bill that we mentioned previously, the Judiciary Committee also added a provision requiring the Bureau of Public Health to implement a medical monitoring program. They did not provide funding for this program.
The Judiciary Committee defeated an amendment that would have allowed citizens to sue to enforce the provisions of the law was defeated 15-10. Here is the breakdown of how delegates voted. Contact info for Judiciary Committee members is available here.
YES: Fleischauer, Hunt, Lane, Longstreth, Manypenny, Moore, Poore, Skinner, Wells, Manchin
NO: Ellem, Ferro, Frich, Hamilton, Householder, Ireland, Lynch, Marcum, McCuskey, O’Neal, Overington, Pino, Shott, Sobonya, Sponaugle
In addition to not allowing citizens to sue to enforce the law, SB 373 also limits the amount of information that can be made available to citizens about the contents of tanks. The Gazette reports that some details about location and chemical content of tanks will be exempted from Freedom of Information Act requests, making it difficult, if not impossible, for citizens to gain access to that information. The article notes:
Federal law requires the state to make chemical inventories public, through FOIA [Freedom of Information Act]. It was unclear if the amendment would conflict with federal law, as text of the amendment was only made available to delegates.
The bill now moves to the House Finance Committee. Contact information for the House Finance Committee is here.
On February 28, Governor Tomblin lifted the state of emergency following the January 9 leak of MCHM into the Elk River that poisoned the drinking water of 300,000 residents across nine West Virginia counties. But many citizens are not yet ready to drink tap water. Concerns include West Virginia American Water’s lack of scheduled plans to change its carbon filters (and rid the cleansing process of any MCHM remaining in the used filters) and lack of water testing data from outlying areas.
Meanwhile, Kanawha County Schools superintendent Ron Duerring notified the school board on Friday that schools across the district would return to using tap water. A robocall to parents on Friday evening said that parents always had the option to send their children to school with bottled water and bagged lunches if they had concerns about their schools’ tap water usage.
Citing her ongoing skepticism, local parent Karan Ireland encouraged other parents to ask schools to distribute bottled water for the remainder of the school year.
“I’m concerned about the lack of notification,” Ireland said. “This brings questions up about schools that have enough bottled water versus other schools that don’t. I’m concerned especially for parents who have little kids in school who might not be able to say they’re not allowed to use it.”
Expectant mothers and parents of very young children face particular worries. As this article points out, there is no science about the effects of either the pure or crude versions of MCHM on fetal development or on babies. And it’s not only the Elk River, from which the water for nine counties is drawn, that is a concern. According to a study by Environment America, the Kanawha River has more reproductive toxicants dumped into it than any other river in the nation, and has the second largest concentration of developmental toxicants in it.
Parents are passionate about protecting their children, and when it comes to the need for safe, clean water, they can be downright fierce! If you are concerned about your children’s access to safe water, there are things you can do. For one, you can call school district administrators in your county and request that schools continue to offer students bottled water. Phone numbers for these public servants are below:
BOONE: John Hudson, 369-3131
CABELL: William Smith, 528-5000
CLAY: Kenneth Tanner, 587-4266
JACKSON: Blaine Hess, 304-372-7303
KANAWHA: Ron Duerring, 348-7770
LINCOLN: Patricia Lucas, 824-6000 x6229
LOGAN: Phyllis Doty, 792-2041
PUTNAM: Chuck Hatfield, 586-0500 x1104
ROANE: Mickey Blackwell, 927-6403
You could also call the state superintendent of schools, Jim Phares, to express your concerns and ask that the state department of education support continued bottled water distribution in effected schools. You can reach him at 558-2681.
On Thursday, American Water Works (West Virginia American Water’s parent company) held their quarterly earnings call, in which they reported to their investors about 4th quarter 2013 financial performance. They also used this opportunity to provide information to their investors about the spill. American Water Works and WV American Water have taken every opportunity to maintain that they responded appropriately to the spill, issued good flushing guidance, and have been providing safe water ever since the “do not use” order was lifted. Thursday’s earnings call was no different. After patting his employees on the back for how well they responded, American Water Works CEO Jeff Sterba also had this to say:
It is not our role to establish those regulations. That belongs to governmental agencies. But we do hope that constructive engagement can occur on increased tank safety, provision of greater information to water utilities on tank contents and stronger communication linkages between regulators, tank operators and water utilities.
What Mr. Sterba seems to be saying, consistent with the (lack of) public position that WV American Water has taken in Charleston, is that it is not the water utility’s job to actively get in front and advocate for stronger source water protection. Mr. Sterba also implies that WV American Water had no way of knowing what was upstream of its intake.
From reading the transcript of yesterday’s earnings call, you would not learn that emergency planning officials did receive information from Freedom Industries (and other facilities storing toxic chemicals) about what was stored in those tanks. That information is required to be shared with state and local emergency management officials under the Emergency Planning and Community Right to Know Act. That act doesn’t require the information to be shared with the water utility, but there’s no reason that the water utility couldn’t have asked for it. WV American Water has not, to my knowledge, made any public statement that indicates that it showed the least bit of curiousity about what potential dangers were lurking upstream of its intake.
Really responding to the Freedom Industries spill means changing the culture around regulatory enforcement, pollution prevention, and emergency preparedness in West Virginia – or, as Bill put it earlier, not “treating West Virginia’s water ways as toxic sewers.”
Here is an example (not from West Virginia, sadly) of what it looks like for a water utility to be proactive about source water protection.
SB 373, the bill to regulate aboveground storage tanks, is still in the House Judiciary Committee. The Judiciary Committee has made some changes to the bill, but hasn’t passed it out of their committee yet. Here are some of the key changes:
The latter two additions to the bill are recommendations that community groups have been pushing for the past several weeks. The Judiciary Committee still has not added the following recommendations:
The last day of the legislative session is next Saturday, March 8th. SB 373 needs to pass out of the House Judiciary Committee, get through the House Finance Committee, AND be reconciled with the Senate version of the bill before next Saturday.
Some lawmakers, apparently worried that this won’t happen, are asking the governor to call a “special session” to pass the tank regulation bill. The danger in this approach is that it gives the governor another shot at rewriting the tank bill before introducing it into the special session. This is pretty much what happened in 2011 when Governor Tomblin called a special session on Marcellus shale drilling and introduced his version of a bill that was a much weaker version of a bill drafted by a Joint legislative committee that had been working on the issue for most of the year.
Several federal agencies (including the Department of Homeland Security, the Environmental Protection Agency, and the Department of Labor) have been charged with implementing a recent Executive Order on “Improving Chemical Facility Safety and Security.” Our previous post has more details about the Executive Order.
Tonight these agencies are hosting a webinar for citizens and community groups to learn more about the Executive Order and how we can contribute to this process. Here is the announcement about the webinar, and how to RSVP:
- Do you have concerns about chemical facilities in your community and across the nation?
- Do you have questions about improving chemical facility safety and security?
- Do you want to know what actions the federal government is taking to improve coordination and information sharing?
- Do you want to know more about what federal regulations are doing to safeguard chemical facilities and communities?
- Do you want to know how community members can provide comments and feedback on the Executive Order in order to help improve the safety and security of chemical facilities?
If so, please join us on Wednesday, February 26 from 8pm to 10pm Eastern for a webinar about the Executive Order 13650 on Improving Chemical Facility Safety and Security to learn how this order will reduce worker and community risks from hazardous chemical releases. Skeo Solutions, an independent contractor, will present the webinar through EPA’s Technical Assistance Services for Communities (TASC) program. The TASC program provides independent technical assistance to communities.
Who should attend: Community members and grass roots organizations, including first responders, interested in improving the safety and security of chemical facilities.
Wednesday, February 26, 8pm – 10pm Eastern
- Space for this webinar is limited, so register today at https://epa.connectsolutions.com/e3y57l48hj2/event/event_info.html.
- Please test your computer before attending the meeting at http://admin.adobeconnect.com/common/help/en/support/meeting_test.htm. The Connection Test checks your computer to make sure all system requirements are met. If you pass the first three steps of the test, then you are ready to participate in a meeting. If you do not pass the test, perform the suggested actions and run the test again.