Tag Archives: Angie Rosser

‘You Make Us Want to Leave’

A disturbing sign of the times in the Mountain State

“Turn, turn any corner / Hear, you must hear what the people say / You know there’s something that’s goin’ on around here / That surely, surely, surely won’t stand the light of day, no … / Speak out! You got to speak out against the madness / You got to speak your mind if you dare.” – From “Long Time Gone,” by Crosby, Stills and Nash, © 1969

CHARLESTON, W.Va. – Hundreds of West Virginia citizens turned out for a rally here on March 12 at the state capitol as the legislature adjourned. They had gathered to demonstrate their disgust with much of the legislation passed in the 2016 session, in particular with those impacting the poor, working families, the environment, public health and more.

WV session by Chad Cordell Kanawha Forest Coalition

Young West Virginians express their sentiments about the West Virginia legislature’s 2016 session. Photo by Chad Cordell, Kanawha Forest Coalition.

Their message was clearly displayed on a large banner they held on the capitol steps: “# Remember in November.”

There were less formal – and arguably more disturbing signs at the rally as well. Holding a home-made sign in West Virginia blue and gold, a young woman sent here message: “You Make Us Want to Leave.” In smaller letters at the bottom, she added, to emphasize just how seriously she meant it, “You Make Me Want to Leave.”

“Me” she said. Just what happened in Charleston this winter that caused the state’s young people to want to be part of what most residents agree is a serious “brain drain” of its young adults at a rate not seen in two generations?

 … no wonder West Virginia becomes the laughing stock of the nation. It’s embarrassing.” – Executive Director Angie Rosser of the West Virginia Rivers Coalition

Analyzing the 2016 legislative session

Those championing social and environmental justice in the marbled halls of the gold-domed capitol along the banks of the Kanawha River offered their insight into what the Republican-led legislature did that has caused its young people and others to speak out in protest.

Executive Director Angie Rosser of the West Virginia Rivers Coalition (WVRC) characterized the session as “Dismissive.” She continued, “When you listen, you get the idea many of our lawmakers are in a state of denial when it comes to environmental impacts. One obvious indication of this was a move to eliminate reference to climate change in science curricula for West Virginia students – no wonder West Virginia becomes the laughing stock of the nation. It’s embarrassing.”

Rosser explained, “An anti-EPA, anti-regulatory sentiment is dominant in the legislature and makes it very difficult to even start a conversation about environmental policies. The ideology is so strong, that merits often don’t matter. The DEP rules bundle (HB 4053), including water, tank, drilling and air quality regulations, died in the last hour of the regular session over a misrepresentation of the facts.”

WV session Remember in November by Catherine Moore

West Virginians stand on their capitol’s steps at the rally held at the end of the legislature’s 2016 session. Photo by Catherine Moore.

Vickie Wolfe, speaking on behalf of the West Virginia Environmental Council (WVEC) concurred on HB 4053 and also pointed to a bill that died because of opposition from Ohio-based FirstEnergy Corporation.

She said, “I think Ken Ward (Jr.) tells it best, referencing his article in the Charleston Gazette-Mail, “DEP Rules Bill Dies in Dispute over EPA Wood Stove Efficiency Regulation.” Wolfe explained, “In 2015 (the legislature) also passed a bill that weakened water quality standards for aluminum and selenium. The related ‘rules’ were submitted for legislative approval by the DEP this year, and one of the most remarkable things that happened in the session was that the rules ‘bundle’ – which included a number of rules – died on the last night!”

She continued, “The most disgusting thing that happened with the environment pertained to a bill that would have allowed counties to engage in ‘local energy efficiency partnerships,’ which is something that’s in effect in roughly half the states … . It’s a funding mechanism for commercial building owners to make energy efficient upgrades to their buildings. It passed its committee reference (Senate Energy, Industry and Mining) unanimously, but then was ‘parked’ in the rules committee and died there. For one reason:  because FirstEnergy, one of the electricity providers in West Virginia, didn’t want it to proceed.”

Director Leslee McCarty of the Greenbrier River Watershed Association asked, tongue-in-cheek, “Did I miss the good bills?” She argued, “All I saw were bad bills which favored industry and tried to take away peoples’ rights to peacefully enjoy their property and to allow companies to pollute. The ‘sneaky landfill bill’ – SB 601 – started out as a gift to frack waste disposal, became a gift to a company doing single stream recycling, then got changed back into a fracking waste bill, then became a single stream bill when it finally passed. What worries me most about it, other than its amazing ability to shape-shift, is that in the end, it takes away the oversight of the Public Service Commission to regulate waste disposal of a certain type. I think it should be challenged in court.”

Economic diversification

These activists also argued that the legislature missed its opportunity to diversify the Mountain State’s economy. This is significant, as the lack of economic diversification is arguably West Virginia’s most urgent issue. This has been caused by the market-forced decline of the coal industry in Southern West Virginia and the impact of fracking upon public health and the environment in the northern half of the state, as well as the boom-and-bust nature of the fossil fuel industry in general.

Rosser said, “Many of the proposed bills we followed dealt with giving the fossil fuel industries a break – reduced severance taxes, relaxed permitting requirements, lessened waste treatment responsibilities. Proponents argued these reforms will make West Virginia’s coal and oil and gas industries more competitive and help them rebound, but it doesn’t solve the looming problem of the state’s dependence upon the fossil fuel mono-economy.” She argued, “We need new thinking toward sustainable forms of economic development. While many of our political leaders are looking in the rearview mirror, we’re missing opportunities to modernize our state’s economy.”

Wv session by Carling McManus, 84 Agency

Various messages are being conveyed by West Virginians at a rally protesting the actions taken by the GOP-led legislature in 2016. Photo by Carling McManus, 84 Agency.

McCarty concurred. “Again, I missed any attempts by the legislature to diversify our economy. They gave tax breaks to coal and oil and gas and even have to have a special budget session to figure out how to tax citizens to keep from going in the hole. They didn’t do anything towards building a sustainable economy. Giving tax breaks to the usual fossil fuel recipients is not forward-thinking. Is anyone in West Virginia trying to draw money from the federal government to retrain workers and diversify our economy? They didn’t even pass a broadband bill. That could have helped.”

McCarty added, “I am very concerned about cuts to state parks. The Greenbrier River Trail looks to be on the chopping block. This trail is one of the jewels in the park system and brings in over $4 million in economic benefit to local communities.” She asked, “How is cutting back on parks, which contribute so much to local economies and our base of tourist attractions, a good economic move?”

Wolfe pointed to the “Uber bill” (HB 4228) as the only legislation she could think of that was remotely related to helping the state’s economy. Beyond that, she said, the legislative efforts were, “Quite dismal.”

Victories

Despite her criticism of legislators, Rosser did point to some efforts and results that she characterized as victories, which she argued, occurred only because of pressure from the public. “A significant victory for the public was the passage of Senate Bill 625 that keeps the public’s right to know about threats to their drinking water supplies.” She pointed to a press release from the WVRC that can be read here.

She added, “Senate Bill 625 was a success for all who care about clean, safe drinking water. It supports meaningful public participation in source water protection planning. I believe SB 625 would not have even been introduced, let alone passed, without the participation of our organization’s supporters. It’s a reminder that we do make a difference. There were other measures that would have ended up a lot worse if we did not have a presence in the process.” More background on this issue can be read here.

Wolfe agreed with Rosser, saying that passage of SB 625 pleased her the most because it “ … provides that when public water utilities involve the public in the development of their required source water protection plans, they are allowed to share with the public information about potential sources of contamination, provided that information is already within the public domain.”

Call to action

Rosser alluded to the power that people enjoy when they act in unison, and issued a call to action in response to the legislative session. “There is power in unifying our voices for justice in all aspects – environmental, social, economic issues all interconnect. I believe that’s something we understand well in West Virginia, and know that as individual advocates and organizations none of us can realize the progress we envision alone,” acknowledged Rosser.

McCarty said, “I think we need to encourage people to look at legislators’ records, bills they sponsored, recorded votes and to support candidates who agree with their worldview.” Perhaps, she added, a voter’s guide with this information in it can be designed and distributed to educate voters.

Rosser returned to the theme of the rally on March 12. “We must support each other and amplify our collective voice for change. And an important way to use our voice is through our vote.”

© Michael M. Barrick / Appalachian Chronicle, 2016

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Groups Work to Bring the Public Voice into Gas Pipeline Projects

Coalition seek answers from WV Department of Environmental Protection

CHARLESTON, W.Va. – Members of a coalition of groups including West Virginia Highlands Conservancy, West Virginia Rivers Coalition, and the Dominion Pipeline Monitoring Coalition commissioned the consulting firm Downstream Strategies to investigate public input opportunities related to the onslaught of proposed natural gas pipeline construction projects across the state. Special focus is given to one of the proposed large-scale interstate transmission lines, the Atlantic Coast Pipeline – a 42” diameter pipe set to cross a total of 100 water bodies within West Virginia.

“The pace of new pipeline development in West Virginia is overwhelming,” said Cindy Rank, of West Virginia Highlands Conservancy. “Residents are concerned about the damage they’re already seeing to their land and local streams, so we’re working to be able to better educate ourselves and others about the West Virginia Department of Environmental Protection’s (WVDEP) role in the permitting process.”

The groups’ initial research resulted in a report released recently, “Atlantic Coast Pipeline in West Virginia: Opportunities for Public Engagement regarding Erosion and Sedimentation,” and is available at www.wvrivers.org/archive/pipelinereportdownstreamstrategies.pdf. Erosion and sedimentation causes nearby waterways to be unnaturally muddy to the point of impacting stream life.

“The rush to build pipelines raises serious concerns for water quality,” said Angie Rosser, executive director of West Virginia Rivers Coalition. “We’re seeing that efforts to control run-off and slides from these projects aren’t working and our streams are paying the price.”

The report lays out points for public participation in decision-making around the Atlantic Coast Pipeline; however it presents as many unanswered questions as answers. The coalition of groups is committed to seeking clarification from the WVDEP on the state’s storm water permitting process for natural gas pipeline construction.

“Although pipeline companies promise to comply with regulations and avoid impacts to landowners, the reality on the ground is quite different,” said Rick Webb, Coordinator of the Dominion Pipeline Monitoring Coalition. “The companies show very little respect for either people or the environment. The fines they sometimes pay are simply the cost of doing business. It seems that non-compliance is cost effective.”

An example of fines for non-compliance came last week when WVDEP agreed to a settlement in which MarkWest Liberty Midstream & Resources will pay $76,000 in fines for a long list of water pollution violations related to at least five of its pipeline projects.

Groups involved in these efforts include Dominion Pipeline Monitoring Coalition, Greenbrier River Watershed Association, WV Highlands Conservancy, WV Rivers Coalition and others.

The Earth Under Assault

Three years after Preserving Sacred Appalachia Conference, Appalachia and all of the planet is as vulnerable as ever to fossil fuel industry

Earth 638831main_globe_east_2048

Credit: NASA

April 22, 2018 — Three years ago this morning, I was having breakfast with our daughter Lindsay in Charleston, W.Va., reflecting upon the Preserving Sacred Appalachia conference we had organized with the help of countless of others. It has broken up the day before, and we allowed ourselves an extra night int he Mountain State’s capital to visit our favorite restaurant for dinner — Leonora’s Spagetti House.

We were hopeful. Despite a steady, cold rain that morning, the outlook we took from the conference reflected that spring morning; while it was cold and rainy, the grays and browns of the West Virginia winter had finally turned green in the Kanawha Valley. Indeed, during the warm and sunny days of the conference, the 50 or so gathered often looked longingly out the window at the budding leaves gently moving from the invisible breeze.

But we stayed inside, because we were gathered for a common and critical purpose — preserving Appalachia and all of the planet. We presumed, as you will read below from the article posted shortly after the gathering, that people from all backgrounds and disciplines could and would agree that the earth is sacred because it is the source of life.

We did. However, three years later, it is clear that the fossil fuel industry has been crushing all efforts at preserving our air, land and water. EQT (Pittsburgh), Dominion (Richmond), and Duke Energy (Charlotte) have set up a nice little triangle of fossil fuel dominance in Appalachia. Since 2010, they have bought the legislators in North Carolina, Pennsylvania, Virginia and West Virginia. Federal and state regulatory agencies have ignored the law and will of the people and greased the tracks for the very companies they are supposed to hold in check.

I am saddened, but I am in awe of our allies (many mentioned below) that continue to fight the good fight to preserve Mother Earth. On this Earth Day, let us recommit ourselves to being part of that fight. — MMB

Unity the Theme at ‘Preserving Sacred Appalachia’ Conference

Interdisciplinary and interfaith gathering helps strengthen collaboration on environmental issues

CHARLESTON, W.Va. – Approximately 40 ecological preservationists joined together in Charleston at the St. John’s XXIII Pastoral Center from April 19-21 to champion responsible environmental stewardship in the context of understanding that Appalachia – and all the earth – is sacred. Among those at the “Preserving Sacred Appalachia” conference were people of faith, activists, artists, scientists, politicians, and educators.

Ben Townsend, a West Virginia native and traditional Appalachian musician, teaches at the conference. Photo by Keely Kernan

Ben Townsend, a West Virginia native and traditional Appalachian musician, teaches at the conference.
Photo by Keely Kernan

The unprecedented interfaith and interdisciplinary gathering was sponsored by St. Luke’s United Methodist Church of Hickory, N.C. In-state partners included the Sierra Club – West Virginia chapter and West Virginia Interfaith Power & Light (WVIPL). The Appalachian Preservation Project handled public relations, planning and logistics for the conference.

It was an intentional interdisciplinary and interfaith outreach by and to people that are devoted to preserving the eco-systems which support life in Appalachia. It brought together the region’s rich collection of seasoned, experienced preservationists. While several organizations provided speakers, the event also included numerous attendees from West Virginia and other Appalachian states determined to identify fundamental areas of agreement regarding the immediate core challenges to Appalachia’s eco-systems and key strategies for addressing them.

Bob Henry Baber, an Appalachian poet, writer and educator, speaks at the conference. Photo by Keely Kernan

Bob Henry Baber, an Appalachian poet, writer and educator, speaks at the conference.
Photo by Keely Kernan

The gathering concluded with a roundtable discussion of the topics discussed over the course of the conference. From those discussions, participants will issue a white paper – scheduled for release this summer. The white paper will be a unified, decisive statement identifying the core challenges threatening the people and environment of Appalachia; explaining what makes Appalachia – and all the earth – sacred; and to equip the people of Appalachia with practical, effective methods to help preserve the region’s water, air, soil, habitats and natural beauty.

The keynote speaker was Tierra Curry, the senior scientist and a conservation biologist at the Center for Biological Diversity. The conference kicked off with an extended trailer of the feature film, “In the Hills and Hollows,” a documentary by Keely Kernan, an award winning freelance photographer and videographer. The documentary, which Kernan is presently filming, investigates the boom and bust impacts that mono-economies based on fossil fuel extraction have on people and their local communities.

Tierra Curry with the Center for Biological Diversity discusses the impact of climate change upon Appalachia. Photo by Keely Kernan

Tierra Curry with the Center for Biological Diversity discusses the impact of climate change upon Appalachia.
Photo by Keely Kernan

Other speakers included Susan Hedge with the Catholic Committee of Appalachia; Bill Price, the organizing representative for the Sierra Club – West Virginia Chapter; Allen Johnson of Christians For The Mountains; Angie Rosser, the executive director of the West Virginia Rivers Coalition; Ben Townsend, a West Virginia traditional musician; Carey Jo Grace and Tuesday Taylor with Our Children, Our Future; Robin Blakeman, the Special Event and Membership Committee Organizer for the Ohio Valley Environmental Coalition; Mike Manypenny, a former member of the West Virginia House of Delegates; Bill Hughes, the West Virginia Community Liaison for the FracTracker Alliance; Bob Henry Baber, a widely published Appalachian poet, novelist, creative writing teacher and mosaic artist; Barbara Ann Volk, a Lewis County landowner; Liz Wiles, the chair of the Sierra Club – West Virginia chapter, as well as Aurora Lights and the Mountain SOL school; Lindsay Barrick, an artist and the Director of Programs at St. Luke’s United Methodist Church; Mel Hoover and Rose Edington with WVIPL; Autumn Bryson, an environmental scientist; Michael Barrick, the founder of the Appalachian Preservation Project and publisher of the Appalachian Chronicle; and, all of the conference attendees.

Topics addressed include Appalachia’s sacredness, climate change, water quality, the role of art and music in telling Appalachia’ story, mountaintop removal, fracking, natural gas pipeline development, child health, politics and policy. It also included times of meditation, reflection and sharing.

Bill Hughes with FracTracker Alliance teaches about the harms associated with fracking. Photo by Keely Kernan

Bill Hughes with FracTracker Alliance teaches about the harms associated with fracking.
Photo by Keely Kernan

As the conference completed, several presenters commented on its value. Wiles shared, “The Preserving Sacred Appalachia conference was a great opportunity to re-connect with familiar faces in West Virginia’s environmental movement as well as meeting members of the faith community who are working on environmental issues in their congregations. This was a good step in bringing together all kinds of communities who care about the health of their families, their neighbors, and their local, natural environment.”

Manypenny said, “I found it very inspiring that so many came out to participate in this event, both as speakers and as advocates, in the ongoing struggle for environmental justice, our Appalachian way of life, and for our love and appreciation of nature.” Barbara Volk echoed his remarks, adding, “I found myself so inspired by the diverse group of people that are ready to shift the paradigm regarding how we affect change in this culture of waste.”

Tierra Curry (L), Susan Hedge and Allen Johnson lead a discussion on the sacredness of Appalachia. Photo by Keely Kernan

Tierra Curry (L), Susan Hedge and Allen Johnson lead a discussion on the sacredness of Appalachia.
Photo by Keely Kernan

Price added, “I’ve been thinking about how the conference will benefit the work that all of us are doing. I think that the faith community can help to convene spaces where people of various opinions and perspectives can come together to get to know each other, to figure out those common values, and to work together for a better future.” Blakeman said, “The conference was a great opportunity to network with and learn from like-minded individuals.”

Hoover offered, “This partnership demonstrates that we are at a crossroads in the Mountain State. We have always known that we must work together to address the many environmental issues impacting the people and ecology of West Virginia. This conference, by joining together people of faith with scientists, educators, artists and others, sends a clear message that cannot be ignored – we are united in purpose.”

St. John's XXIII Pastoral Center. Photo by Allen Johnson

St. John’s XXIII Pastoral Center.
Photo by Allen Johnson

© Appalachian Preservation Project, LLC, 2015. The Appalachian Chronicle is a publication of the Appalachian Preservation Project. The Appalachian Preservation Project is a social enterprise committed to preserving and protecting Appalachia. If you wish to support our work, please consider becoming a member.

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Provisions of W.Va. Storage Tank Law Undermine its Stated Intent

Aboveground Storage Tank Act gives gas and oil industry protection from oversight

By Michael M. Barrick

CHARLESTON, W.Va.
– On January 9, 2014, at about 10 a.m., fire departments in Kanawha County, the home to West Virginia’s state capital, were dispatched to two locations because reports of a “chemical odor” were being called in by citizens. It was at least four hours before emergency response officials realized they had a major public health and ecological crisis on their hands – the water for 300,000 people served by the Elk River was unsafe for human use.

A child enjoys the wonder of a Wild West Virginia river. Photo courtesy of West Virginia Rivers Coalition

A child enjoys the wonder of a Wild West Virginia river.
Photo courtesy of West Virginia Rivers Coalition

It wasn’t until about 2 p.m. that Mike Dorsey, the emergency response coordinator for the West Virginia Department of Environmental Protection (WVDEP), determined that the release of the coal-mining cleaning chemical 4-methylcyclohexane methanol (MCHM) at a site owned by Freedom Industries along the Elk River had reached the water intake of the West Virginia American Water Company.

At the time, the West Virginia legislature had just convened, so, it wasn’t long before legislation was passed and then signed by Governor Earl Ray Tomblin. The law was designed to protect the drinking water of the state’s citizens as well as water for other essential uses, including farming, the aquatic life so valuable to the ecology of our watersheds, and the intrinsic value it offers people in the form of hiking, fishing, kayaking and more.

Lawmakers, Tomblin Reverse Course
Elections have consequences, however, and with the Republican-led House and Senate majority elected by Mountain State residents last November championing their “pro-business” agenda, public health and ecological concerns became subordinate to business interests. So, with the single stroke of a pen on March 27, Governor Tomblin acquiesced to the Republican leadership and, with his signature of Senate Bill No. 423, enacted the severely amended Aboveground Storage Tank Act into law.

The bill’s chief sponsor was Senator Mike Hall, a Republican representing District 4. Other sponsors were: Republicans Craig Blair and Charles Trump IV, representing District 15; Republican Mitch Carmichael, the other senator representing District 4; both senators from District 12, Democrats Douglas Facemire and Mike Romano; Democrats Art Kirkendoll and Ron Stollings, representing District 7; Republican Jeff Mullins, representing District 9; Democrats Robert Plymale and Mike Woelfel of District 5; and, Bob Williams, a Democrat representing District 14. Contact information for the senators can be found here.

Sandstone Falls on the New River near Hinton, W.Va. Photo courtesy of Debbie Smith

Sandstone Falls on the New River near Hinton, W.Va.
Photo courtesy of Debbie Smith

District 4 borders the Ohio River; District 5 also borders the Ohio River; District 7 includes a large portion of the southwestern coalfield counties; District 9 includes coal-producing Raleigh and Wyoming counties, as well as a small slice of McDowell County; District 12 stretches from Harrison to Clay counties and includes significant gas and oil interests; District 14 includes several northeastern counties, and District 15 is in the eastern panhandle. District maps can be seen here.

While Tomblin is term-limited and cannot seek re-election in 2016, senators have no term limits on their four-year terms. Elections for senators are staggered, with one from each district elected in alternating electing cycles.

The Law’s Stated Intent
At first glance, the law’s stated intent seems to be written for public welfare. In the first paragraph, in which the various amendments and changes are outlined, the language of the bill acknowledges that its original intent is “… all relating to protection of water resources and public health generally …”

The law further states: “The West Virginia Legislature finds the public policy of the State of West Virginia is to protect and conserve the water resources for the state and its citizens. The state’s water resources are vital natural resources that are essential to maintain, preserve and promote human health, quality of life and economic vitality of the state.

“The West Virginia Legislature further finds the public policy of the state is for clean, uncontaminated water to be made available for its citizens who are dependent on clean water as a basic need for survival and who rely on the assurances from public water systems and the government that the water is safe to consume.”

Indeed, the law even acknowledges that there are risks associated with aboveground storage tanks: “The Legislature further finds that large quantities of fluids are stored in aboveground storage tanks within the state and that emergency situations involving these fluids can and will arise that may present a hazard to human health, safety, the water resources, the environment and the economy of the state. The Legislature further recognizes that some of these fluids have been stored in aboveground storage tanks in a manner insufficient to protect human health, safety, water resources, the environment and the economy of the state.”

West Virginia Rivers Coalition Executive Director Angie Rosser speaks before West Virginia legislators about the Aboveground Storage Tank law. Photo courtesy of WV Rivers Coalition

West Virginia Rivers Coalition Executive Director Angie Rosser speaks before West Virginia legislators about the Aboveground Storage Tank law.
Photo courtesy of WV Rivers Coalition

Expert Says that Despite Law’s Stated Intent, Oversight is Severely Weakened
Angie Rosser, the executive director of the West Virginia Rivers Coalition, spent much of the legislative session working to preserve the original bill’s language, intent and purpose. While some protections remain in place, Rosser points out that there are several provisions in the amended law that severely weaken its intent and enforcement.

Specifically, she points to the reduction in the number of storage tanks that require an inspection; the lack of oversight of wells, watersheds, and groundwater; allowing companies to keep secret as “proprietary” the composition of hazardous materials and waste; allowing the West Virginia Division of Homeland Security and Emergency Management to declare certain chemicals, policies and procedures free from public scrutiny; concerns about interagency cooperation; and, a provision which allows the Secretary of the WVDEP to grant exemptions to the law’s reporting requirements.

Zones of Concern
The number of aboveground storage tanks requiring inspection was reduced to an estimated 50,000 to 12,000 according to testimony by WVDEP officials during hearings for the bill. This reduction is concerning, said Rosser. “By defining the zones of critical concern and peripheral concern as it has, the legislature has reduced the number of tanks needing monitored, it has jeopardized ground water supplies, and has increased the risk to communities not within those zones.”

According to the law, “‘Zone of critical concern’ for a public surface water supply source and for a public surface water influenced groundwater supply source is a corridor along streams within a watershed that warrants detailed scrutiny due to its proximity to the surface water intake and the intake’s susceptibility to potential contaminants within that corridor. The zone of critical concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the zone of critical concern is based on a five-hour time-of-travel of water in the streams to the intake. The width of the zone of critical concern is one thousand feet measured horizontally from each bank of the principal stream and five hundred feet measured horizontally from each bank of the tributaries draining into the principal stream.”

Bluestone Lake in southern West Virginia Photo courtesy of Debbie Smith

Bluestone Lake in southern West Virginia
Photo courtesy of Debbie Smith

A “zone of peripheral concern” is defined as, “The length of the zone of peripheral concern is based on an additional five-hour time-of-travel of water in the streams beyond the perimeter of the zone of critical concern, which creates a protection zone of ten hours above the water intake. The width of the zone of peripheral concern is one thousand feet measured horizontally from each bank of the principal stream and five hundred feet measured horizontally from each bank of the tributaries draining into the principal stream.”

An aboveground storage tank with a zone of critical concern is deemed a “level 1 regulated tank;” one in a peripheral zone is a “level 2 regulated tank.” All tanks “… with a capacity of 50,000 gallons or more, regardless of its content or location,” is a level 1 regulated tank. The tanks are also regulated if they contain substances defined in section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as a “hazardous substance” … or is on EPA’s “Consolidated List of Chemicals Subject to the Emergency Planning and Community Right to Know Act (EPCRA), CERCLA, and … the Clean Air Act (CAA).”

As Rosser noted, “The problem with this is, in addition dramatically reducing the number of storage tanks within the oil and gas industry that require monitoring, it completely ignores private wells and those facilities that are beyond these ‘zones of concerns.’ This clearly shows the political muscle of coal, oil and gas to work together, in particular gas and oil.”

Public Access Restricted
Public access to information is also restricted, noted Rosser. The law states, “Trade secrets, proprietary business information and information designated by the Division of Homeland Security and Emergency Management as restricted from public release shall be secured and safeguarded by the department. Such information or data shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees or representatives of a state or federal agency implementing the provisions of this article or any other applicable law related to releases of fluid from aboveground storage tanks that impact the state’s water resources. Any person who makes any unauthorized disclosure of such confidential information or data is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than $1,000 or confined in a regional jail facility for not more than twenty days, or both.”

Said Rosser, “This is crazy. After Elk River, when nobody knew what they were ingesting, to allow companies to keep the content of hazardous materials as ‘proprietary’ is an insult to the people of West Virginia. The provision allowing the Department of Homeland Security to limit disclosure is ridiculous. What are the odds of a terrorist getting access to these materials as opposed to them being released by a company out of negligence? This just allows corporations to hide behind national security.”

The Tygart Valley River at Valley Falls State Park on the Marion and Taylor County line in West Virginia. Photo by MB

The Tygart Valley River at Valley Falls State Park on the Marion and Taylor County line in West Virginia.
Photo by MB

Furthermore, the law states, “The exact location of the contaminants within the zone of critical concern or zone of peripheral concern is not subject to public disclosure in response to a Freedom of Information Act request.” The law does require that emergency responders and the public be “promptly notified” in the event of a spill. It does not require, however, that the public be informed of the nature of the threat. Emergency response officials would be told as the event unfolds, though certainly not with sufficient time to garner situational awareness for developing an incident action plan.

Interagency Cooperation a Concern
Rosser also expressed concerns about the interagency cooperation called for in the law. The statute reads, “In implementation of this article, the secretary shall coordinate with the Department of Health and Human Resources, the West Virginia Public Service Commission, the Division of Homeland Security and Emergency Management and local health departments to ensure the successful planning and implementation of this act, including consideration of the role of those agencies in providing services to owners and operators of regulated aboveground storage tanks and public water systems.” It continues, “The Division of Homeland Security and Emergency Management shall also coordinate with state and local emergency response agencies to facilitate a coordinated emergency response and incident command and communication between the owner or operator of the regulated aboveground storage tank, the state and local emergency response agencies, and the affected public water systems.”

Rosser shared, “This means agencies – especially local ones such as public health departments and offices of emergency management, which are often operating with only part-time staff – will be charged with enforcement duties when they often lack the manpower and expertise to exercise their present duties. This isn’t a criticism of local folks; it’s an acknowledgment that they state does not collaborate well with or properly finance local emergency response agencies.”

Industry Provided Loophole
Oversight and enforcement of the law rests with the WVDEP Secretary. His or her office is responsible for conducting an inventory of the tanks which meet the law’s definitions, reviewing emergency plans, issuing permits, inspecting the tanks, establishing guidelines for tank safety, determine non-compliance, and issuing and collecting fines.

However, Rosser pointed out that the law provides a loophole that gives the WVDEP Secretary too much discretion to ignore important aspects of the law. The provision states, “For those entities that are otherwise regulated under those provisions of this chapter that necessitate individual, site-specific permits or plans that require appropriate containment and diversionary structures or equipment to prevent discharged or released materials from reaching the waters of the state, the secretary may amend those permits or plans associated with those permits or both at the request of the permittee to include conditions pertaining to the management and control of the regulated tanks, so long as those conditions in the opinion of the secretary are sufficient in combination with practices and protections already in place to protect the water of the state.” It adds, “Any entity whose permit or plan modification or amendment relating to tank integrity and secondary containment design operation and maintenance is approved by the secretary and so maintained shall be deemed to be compliant with the article and entitles the entity to a certificate to operate…”

Rosser observed, “This essentially means that companies have to register, but not comply. All inspections and standards would not refer back to the act, but would be determined by what is in the modified plan.” She added, “The DEP will get 12,000 modification requests. Why even have the law?”

Business as Usual
Rosser raises a valid question. Why, indeed, did lawmakers take the time to declare its concern for the public health and safety of its citizens and the importance of protecting water – our very source of life – then write provisions that undermine their lofty words?

Because, as usual, West Virginia is open for business. Once again, short-term profit trumps the dignity of West Virginia’s people and her resources. For the Mountain State, it is business as usual.

© Appalachian Preservation Project, LLC, 2015. The Appalachian Chronicle is a publication of the Appalachian Preservation Project. The Appalachian Preservation Project is a social enterprise committed to preserving and protecting Appalachia. If you wish to support our work, please consider becoming a member.

Also, the “Preserving Sacred Appalachia” Earth Day conference is going to be this Monday and Tuesday, April 20-21 in Charleston, W.Va. This is a wonderful opportunity to be part of a community of like-minded preservationists to address the topics covered extensively on this site. Registration is open through Saturday. Learn about it and register for it here.

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