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.
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.”
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.”
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.”
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.”
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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News conference at state capitol scheduled to demand clean and safe water, express solidarity with residents of Flint, Michigan
CHARLESTON, W.Va. – A coalition of approxmiately 40 groups and individuals have scheduled a news conference on Tuesday, Feb. 9 at the state capitol here to focus attention on the importance of clean and safe water.
According to a news release from Angie Rosser of the West Virginia Rivers Coalition, Gary Zuckett of the West Virginia Citizens Action Group, and Vivian Stockman of the Ohio Valley Environmental Coalition, the purpose of the news conference is, “To call on our elected officials and regulators to live up to their responsibility to protect our basic right of access to safe water – government failings that led to the 2014 West Virginia Water Crisis, and following crises in Toledo, Ohio; Sebring Ohio; and, Flint, Mich.” The groups pointed in particular to the public health crises and millions of dollars in costs borne by taxpayers caused by the various disasters.
The news conference is scheduled for 2 p.m. in the lower rotunda of the state capitol.
The release noted, “The West Virginia Legislature continues to roll back protections for our water supplies. The Public Service Commission may abandon its duty to investigate what went wrong, and what needs fixed. Our congressional members seek to block proposed federal water protections at every turn.”
It added, “With our letter of solidarity to the residents of Flint, Michigan from 38 West Virginia groups, we come together in solidarity with communities across this state and nation to remind decision makers that water is everyone’s priority. We need commitments to protect water supplies and upgrade water infrastructure, everywhere, and especially in communities home to low-income families or people of color.”
The news conference comes less than a month after an independent report blasted West Virginia American Water Company for not being prepared for a chemical spill that polluted water of 300,000 people living in the Kanawha Valley in January 2014. Among other recommendations, the report urges municipal takeover of the Charleston water system and other systems in the state owned by West Virginia American Water Company (WVAW).
Boston Action Research (BAR), a project of the Civil Society Institute (CSI) argued that privately owned WVAW has still not taken the necessary steps to prepare for a future crisis, hold down rates, avoid major service disruptions, and invest in aging infrastructure.
The root cause of these problems, according to the BAR report, is that WVAW is guided by a profit motive. According to the report, “WVAW pays a higher percentage of its profits in dividend payments to its parent corporation, American Water Company, than its subsidiaries in other states on average, which sends precious financial resources out of West Virginia that could otherwise be invested in the water system.” It concludes, “Given the ongoing shortcomings of WVAW … [t]he best course of action for West Virginians is to assume public ownership and operation (municipalization) of the Charleston regional water system.”
The Elk River Spill and other water-related issues will be addressed by the various speakers scheduled for the Feb. 9 news conference. Scheduled speakers and topics include:
- Natalie Thompson, Ohio Valley Environmental Coalition: Welcome and introduction of speakers.
- Crystal Good, Affected citizen: Reading of the solidarity letter from West Virginians to the citizens of Flint, Michigan.
- Obi Henderson, Charleston resident: The call for water justice.
- Karan Ireland, Advocates for a Safe Water System: The need for full investigation of lessons learned from water crisis.
- Junior Walk, Coal River Mountain Watch: Growing up in West Virginia with poisoned water.
- Angie Rosser, West Virginia Rivers Coalition: Current legislation rolling back water protections.
- Gary Zuckett, West Virginia Citizen Action Group: Closing and Q&A.
The group is also are alerting citizens to a scheduled meeting of the Joint Legislative Oversight Commission on State Water Resources on at 4:30 p.m. in the House Chamber to review the recommendations of the Public Water System Supply Study Commission.
Involved Groups and Individuals
Advocates for a Safe Water System / American Friends Service Committee / Appalachian Catholic Worker / Catholic Committee of Appalachia (WV Chapter) / Charleston WV Branch NAACP / Christians For The Mountains / Coal River Mountain Watch / Concerned Citizens of Roane County / Covenant House of West Virginia / Doddridge County Watershed Association / Friends of Water / Greenbrier River Watershed Association / Huntington-Cabell Branch of the NAACP / Kanawha Forest Coalition / Keeper of the Mountains / MelRose Ministries for Positive Transformative Change / Mountain Lakes Preservation Alliance / Ohio Valley Environmental Coalition / People Concerned About Chemical Safety /Plateau Action Network / POWHR (Preserve Our Water, Heritage, Rights) / Preserve Greenbrier / Preserve Monroe / RAMPS (Radical Action for Mountains’ and People’s Survival) / Stories From South Central, WV / Southern Appalachian Labor School / South Central Educational Development, Inc. / West Virginia Center on Budget and Policy / West Virginia Chapter of Sierra Club / West Virginia Citizen Action Group / West Virginia Clean Water Hub / West Virginia Direct Action Welfare Group / West Virginia Environmental Council / West Virginia Healthy Kids and Families Coalition / West Virginia Interfaith Power and Light / WV FREE (West Virginia Focus: Reproductive Education and Equality) / West Virginia Chapter, NAACP / West Virginia Rivers Coalition and these individuals: Crystal Good @cgoodwoman / Ellen Allen and Sue Julian / Helen Gibbins / Karan Ireland / Maya Nye / Paula Swearengin / Shirley Rosenbaum.
© Appalachian Chronicle, 2016
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Organizations and individuals fighting Dominion and its partners express satisfaction, but caution that the battle is far from decided
By Michael M. Barrick
CLARKSBURG, W.Va. – Opponents to the proposed Atlantic Coast Pipeline (ACP) are expressing delight about a decision by the United States Forest Service (USFS) to reject the proposed ACP route because it would jeopardize what the USFS calls “sensitive resources.”
Despite the decision, opponents are also advising caution, saying that it could only delay, but not stop, the proposed 550-mile natural gas pipeline that is a project of Dominion Resources, based in Richmond, Va., and its partners, including Duke Energy of Charlotte, N.C. As currently proposed, the ACP would originate in Harrison County, W.Va. and terminate in southeastern North Carolina. Ultimate approval for the ACP will be up to the Federal Energy Regulatory Commission (FERC).
For now, though, the USFS decision has put the brakes on the proposed route.
In a letter and attachment to Leslie Hartz of Atlantic Coast Pipeline, LLC, USFS officials explained the decision and provided an “Assessment of Inconsistencies with Forest Plan Direction and Other Directives.” The letter was signed by Kathleen Atkinson of the USFS Eastern Region and Tony Tooke of the Southern Region.
Hartz and Tooke wrote, “We have determined that the proposed route does not meet minimum requirements of initial screening criteria … .” They explained, “The Land and Resource Management Plans for the Monongahela and George Washington National Forests contain standards and guidelines to protect highly sensitive resources, including Cheat Mountain salamanders, West Virginia northern flying squirrels, Cow Knob salamanders, and red spruce ecosystem restoration area.”
They continued, “Therefore, alternatives must be developed to facilitate further processing of the application.” They directed, “The status of the species in terms of risk for loss of viability on the National Forests, consistency with protections in the Forest Plans and other directives, and the uniqueness of ecosystems such as the spruce ecosystem restoration areas must be considered in the development of alternatives.”
Among the most vocal opponents to the ACP have been residents of Nelson County, Va. Marilyn Shifflett of Free Nelson said, “Those of us in opposition to the ACP have been extremely impressed at the work the USFS has done on this project for many months now. They have worked tirelessly to insure that regulations are followed and key sensitive areas are protected for future generations.” She cautioned, however, that citizens remain concerned about FERC’s review. “We remain hopeful that the FERC will take the USFS’s concerns seriously and that FERC Commissioners will review all of the USFS submissions by taking one step further, and consider the sensitive areas adjoining National Forest lands with a more critical eye. We have seen similar misrepresentations and incompleteness in the Resource Reports submitted for the ACP’s formal application and we will continue to ask that the FERC review these submissions very carefully.”
Friends of Nelson President Joanna Salidis offered, “We greatly appreciate the Forest Service’s tenacity in ensuring that federal laws and regulations pertaining to our national forests are enforced. We are grateful that they are working to protect the biodiversity, water, and recreational resources that so many people depend on. We are thrilled about the difficulty and delays the necessity of coming up with a new route will likely cause Dominion.” She, too, expressed concerns about the FERC review, saying, “We also note that the Forest Service’s advocacy for our public property highlights the absence of a similar watchdog agency for private property and impacted communities and individuals. The rest of us are left with FERC, bought and paid for by the industry.”
Jared M. Margolis, an attorney with the Center for Biological Diversity who focuses on the impacts of energy development on endangered species, said, “We are very pleased that the USFS has agreed that the project as proposed would have adverse impacts on vital habitat areas for imperiled species, including the Cow Knob salamander, which the Center has proposed for listing under the Endangered Species Act, as well as habitat for the Cheat Mountain salamander, which is listed as threatened.”
He added. “While the Forest Service stated that alternative routes must be found to avoid these sensitive habitats, it found that the route variations that have been proposed do not resolve the concerns. It therefore remains unclear whether alternative routes are even possible through this region that would not have such unacceptable impacts.”
He was also blunt in his assessment of the ACP. “This pipeline would be an unmitigated disaster for rare wildlife like the Cow Knob salamander, and would intensify climate disruption by increasing fracking and continuing our reliance on fossil fuels. While it is heartening to see the Forest Service step up to ensure that vital habitats on the George Washington National Forest are protected, we do not need alternative routes for this project. What we need is to stop creating dirtier fossil fuel infrastructure and keep it in the ground.”
Elise Keaton with the Greenbrier River Watershed Association insisted, “This would not have happened but for the constant work of citizen groups and coalitions forcing the Forest Service to conduct more stringent reviews of these proposed routes.” She added, “My hope is that the other national forests that are projected to be impacted by the Mountain Valley Pipeline will follow suit in protecting critical habitat. Further, the cumulative impact of two export pipelines through these parts of the state need to be reviewed to determine if they are at all necessary.”
Keaton concluded, “This decision is positive in that it reflects the Forest Service’s willingness to protect the ecology within the National Forest which many residents of West Virginia and Virginia have worked hard to preserve. However, re-routing the proposed pipeline through another area does not necessarily mean that these same species won’t be impacted.”
Allen Johnson of West Virginia-based Christians for the Mountains shared, “I am surprised, but pleasantly so, by the decision of the U.S. Forest Service to protect the very sensitive areas of the northern flying squirrel, sensitive streams, and a tremendous 2,000 feet vertical climb over and down Cheat Mountain.” He admitted, “I tend to be jaded by politics and felt the USFS would roll over for the pipeline.”
He warned, however, “On the other hand, the likely alternative route would be very close to where I live, within three miles at some point, I think. It would still transgress some of the Monongahela and George Washington National Forests, and would also impact more private landholders. At this point, the alternative routes have had little public input, so I would push for another FERC scoping process.”
Executive Director Angie Rosser of the West Virginia Rivers Coalition shared, “This decision affirms that the USFS is taking their responsibility to protect sensitive resources and endangered species seriously. The ecological significance of the headwaters and forested land in this region cannot be overstated. We celebrate the Forest Service stepping in to defend it.”
Still, Rosser argued, “It’s not over. Dominion will undoubtedly look to alternative routes and there will be the same important questions to examine about forest fragmentation, headwater streams, rare species habitat, and more. And the big questions remain in the context of several proposed pipelines in this region – is there a need for them all, and what would be the cumulative impact to this special area of the country?”
April Keating, the chairperson of Mountain Lakes Preservation Alliance, a grass roots movement in several central West Virginia counties, shared, “This is certainly a necessary first step in protecting our communities from gas infrastructure buildout, and shows that our forest service is on the ball and watching. Having a federal agency backing up what the citizens have been saying is also encouraging.”
Yet, she added, “I do not think environmental arguments are going to be enough to stop, slow, or re-route the pipelines. Though the threat to our environment is real from this industry, we have to make sure our public officials and agencies consider all the effects on our communities: public health and safety, economic drag, slowed progress in renewable energy development, protection of historical resources, and even things like cultural attachment. There is a strong connection between the water and public health, but somehow public officials don’t see the emergency such projects constitute.”
She argued, “Citizen action in West Virginia is the only way we are ever going to see progress in a ‘business as usual’ state whose economy has always been based on extraction. It is time to diversify the economy, do something new. The job opportunities are plentiful, if we could only get our leaders to see it. Some days I am discouraged, some hopeful, but in the end, I believe our efforts will push us forward, if only a tiny bit, and that in itself is progress.”
Ohio Valley Environmental Coalition (OVEC) Executive Director Janet Keating remarked, “OVEC is pleased that the U. S. Forest Service has rejected the proposed route of the Atlantic Coast Pipeline through the Monongahela National Forest because of concerns over the impacts upon the Cow Knob salamander as well as the restoration efforts for the northern flying squirrel. Yet our concerns regarding this massive pipeline don’t end here.” She explained, “This issue is about much more than unique salamanders and flying squirrels. The larger issues that loom are not only the direct threats to our forests and attenuate wildlife – and private property impacted by the construction of this massive pipeline – but also how building this infrastructure promotes more drilling for deep shale gas and oil, which increases the risks associated with climate change. The overarching concerns that FERC, other government entities and all our politicians should have are the threats that continued use of fossil fuel extraction and burning has upon the very existence of humans, other life on earth and our home, planet earth.”
She asked, “Why should West Virginia’s politicians allow our state to bear all the environmental costs, especially threatening our precious and vital water resources, for the construction of the ACP and then ship natural gas to North Carolina or overseas? Beyond short-term economic gain, how do people here really benefit?” She concluded, “It’s time for our state and nation to get serious about clean, renewable energy and energy efficiency, approaches to energy production that create jobs, decreases risks to human health and water, and stems the tide on climate change.”
OVEC’s Project Coordinator Vivian Stockman added, “It’s great news that the Forest Service has denied ACP’s application for a Special Use Permit based on endangered species and ecological health. Now, ACP will have to propose a new route or system alternatives. Now, we need to consider human health. We say there’s no proposed route that will protect communities, air, water and land.
“We simply don’t need this pipeline. We don’t need to waste all the money on shoring up fossil fuel infrastructure. We say the alternative, for the sake of human and planetary health, is decentralized renewable energy.”
© Michael M. Barrick, 2016.
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From the Alleghenies of West Virginia to the Blue Ridge of Virginia, citizens joining forces to battle fossil fuel industry over public and ecological health
JACKSON’S MILL, W.Va. – West Virginians facing crucial quality of life issues with the onslaught of the deep shale oil and gas industry are banding together for the sake of their communities.
On December 15, more than 40 people representing 30 citizen groups from across West Virginia, as well as one Virginia group, gathered to meet one another and to discuss each group’s work surrounding deep shale oil and gas issues.
The various groups and coalitions work to address one or more of the detrimental impacts of oil and gas production on communities, human health and the environment that arise from activities associated with deep shale hydraulic fracturing or “fracking.”
Their concerns include property rights; air, water and noise pollution; compressors stations; water withdrawal from our state’s streams and rivers; pipelines; wastewater treatment facilities; waste disposal and waste transportation; as well as public policy proposals looming when the West Virginia Legislature begins its regular legislative session this January 2016.
Attendees included representatives of community action groups, based in areas where the rural way of life and the environment are directly impacted by fracking/gas, as well as members of statewide organizations such as the West Virginia Surface Owners Rights Organization, West Virginia Chapter of the Sierra Club, West Virginia Rivers Coalition and West Virginia Highlands Conservancy. Also in attendance were leaders from the faith community, scientists and public policy/economic professionals.
“Monroe County citizens are broadly mobilized to focus on blocking the development of frack gas infrastructures,” said Monroe County resident Laurie Ardison, who is with Preserve Monroe and POWHR, Protect Our Water, Heritage, Rights. POWHR is an interstate coalition group working to protect the water, local ecology, heritage, land rights and human rights of individuals, communities and regions from harms caused by the expansion of fossil fuel infrastructures.
“We have an opportunity to develop clean jobs with renewables and cheaper energy efficiency programs. Locking us into fossil fuels for the future is going to pull us away from forward thinking economic development,” said April Keating with the Mountain Lakes Preservation Alliance.
“Clearly, we can increase our capacity and impact when we work together towards common goals,” said Janet Keating, the principal organizer of the meeting and executive director of the Ohio Valley Environmental Coalition, based in Huntington.
“Coming together from across the state working on various issues related to shale gas development, we learned common concerns connect us,” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “We see a need to work together to set the best way forward for a healthy environment and economic future for our state.”
“There are negative health consequences for the people who live near fracking sites. It is time for policy makers and the industry to recognize that people who live next to natural gas facilities are paying a high price,” said Conni Gratop Lewis of the West Virginia Environmental Council.
Another attendee stated, “The meeting was an energizing experience for me. I had been feeling a bit burned out lately, but now I feel like we may have a chance of beating this assault.”
“From pipelines cutting through the highland mountains to waste inundating the lowland fields and wetlands, the recent boom of oil and gas development is as harmful to many as it is economically beneficial to a few,” said Cindy Rank of the West Virginia Highlands Conservancy. “As the region celebrates any short term economic gains, we must also fight to preserve the air we breathe, the water we rely on, the forests we enjoy, and the health of those who live near the drilling and production operations.”
© Appalachian Chronicle, 2015
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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.
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.
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.”
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.”
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.”
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.
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Groups assert that West Virginia Department of Environmental Protection fails to protect people and the environment
Special to the Appalachian Chronicle
CHARLESTON. W.Va. – Seven local, regional and national groups filed a formal notice on March 17 of intent to sue the U.S. Office of Surface Mining (OSM) for failing to intervene on West Virginia’s lax oversight of mountaintop removal and other destructive surface coal mining – a state program that has, for decades, allowed the coal industry to ravage the environment, putting people at risk and destroy local communities, assert the groups.
The groups on the notice are the Coal River Mountain Watch, the Ohio Valley Environmental Coalition, the West Virginia Highlands Conservancy, the West Virginia Rivers Coalition, the Center for Biological Diversity, the National Wildlife Federation, and the Sierra Club.
According to the groups, the state’s chronically poor oversight has included a persistent failure to conduct inspections meant to protect people and the environment from coal companies that operate outside the law. They claim that out-of-control mountaintop removal coal mining is linked to epidemics of cancer, cardiovascular disease and birth defects in affected communities. West Virginia has also failed to undertake required assessments to ensure lakes, rivers and drinking-water wells aren’t harmed by mountaintop removal mining and other destructive surface coal mining practices.
“Citizens’ groups have been forced to demand federal enforcement because the West Virginia Department of Environmental Protection (DEP) has failed to do its job,” said Vernon Haltom, executive director of Coal River Mountain Watch. “Our communities and health suffer because the state lets the mining industry get away with polluting at will.”
In June 2013, 18 organizations joined a legal petition to the Office of Surface Mining detailing the extensive mining oversight failures of West Virginia’s DEP. The federal agency has acknowledged that five of the claims have merit, but has failed to take action toward promulgating a federal program. Under the federal Surface Mining Control and Reclamation Act, it is required to step in when a state fails to implement, enforce or maintain its program for overseeing surface mining.
“The situation here could not be more urgent,” said Vivian Stockman, project coordinator at the Ohio Valley Environmental Coalition. “Under West Virginia’s program, we’ve seen once vibrant streams die, devastating floods, and loved ones exposed to toxic blasting dust take ill. Mountaintop removal coal mining has destroyed communities and threatens to destroy more. We need OSM to take action now.”
The notice of intent details the state’s failure to complete mandatory inspections evaluating whether a mining operation is complying with the law.
“West Virginia’s watchdog on mountaintop removal coal mining is utterly failing to do its job. During one three month stretch in 2014, the state failed to conduct 171 required inspections,” said Lori Ann Burd, environmental health director at the Center for Biological Diversity. “These chronic failures translate into serious harm on the ground, because without inspections, the people who live in the state have to rely on the mining industry to voluntarily report things like water-quality violations that threaten public health.”