One year out. Who is serious about fixing the water crisis?
The one year anniversary of the January 9, 2014 disaster has passed. Back on January 14, 2014, I posted a piece about the crisis over on The Power Line about the situation. I wrote in that post how our state’s leaders are not really serious about creating safe communities in our state in which people can live without fear for themselves and their families.
We have had a year to find out who is serious about WV’s future, and who is not. Last week, Ken Ward continued his excellent work on the continuing water crisis with an excellent summary of how events have unfolded since January 9, 2014. His account provides a great starting point for our analysis.
If WV politicians, regulators and businesses were serious about protecting West Virginians there would have been significant change in the last year in the way regulators regulate, laws on the books and the way businesses, in particular WV American Water Company, the utility that allowed its water system to become contaminated, are operating. Have we seen that kind of change? By and large, we have not.
- Has the US Congress tightened the regulation of dangerous chemicals and funded new toxicity research to identify public health impacts of the tens of thousands of chemicals for which almost no research has been done? As Ken Ward notes in his article: “After the Freedom leak, there was much talk in Washington that Congress might finally get around to reforming the Toxic Substances Control Act, to remedy this lack of information. So far, though, that reform remains stalled.”
- Has the WV Legislature passed laws tightening state regulation of threats to public drinking water? In the 2014 legislative session, the Legislature passed SB373 designed to tighten regulation of above ground storage tanks and mandate source water protection plans for all water utilities in WV. The WV DEP, to its credit, has done a good job of implementing the initial round of tank registration and mandated inspection, although the agency estimates that 20,000 tanks may still be unaccounted for. However, last summer, the Democratic leadership in the House, along with oil and gas industry lobbyists pushed to roll back protections in SB373. Rural water systems also pushed to be exempted from source water protection plan requirements. Mr. Ward looks ahead to the new legislative session: “Still, industry lobbyists and the new Republican leadership in the state House of Delegates and Senate have made it clear they’ll be looking at ways to revisit the legislation and eliminate some of its requirements that various groups — led by the oil and gas industry — have said are too onerous. Already, during last month’s interim meetings, some lawmakers began a move to eliminate the DEP’s longstanding policy of enforcing drinking water standards on all rivers and streams statewide, even if they aren’t currently used for public drinking water service.”
- Has Gov. Tomblin improved the responsiveness of his administration based on the experience of the water crisis? Gov. Tomblin’s office has issued an After Action Review which includes a lot of welcome self-criticism of most aspects of the misleading and even dangerous advice that came from the Governor’s Office. Gov. Tomblin has replaced the bumbling former director of the Bureau, Letitia Tierney, with former Kanawha-Charleston Public Health Department director Dr. Rahul Gupta. Dr. Gupta was the lone source of honest, accurate and medically sound advice throughout the entire water crisis, so his appointment to replace Dr. Tierney is a huge improvement. As Ken Ward points out in his article, however, Tomblin’s Homeland Security Director Jimmy Gianato continues to hide vital information from emergency agencies and the Bureau for Public Health that would go a long way toward creating a unified and fully informed response plan for future disasters. By contrast, Dr. Gupta has supported full inter-agency communication. Gov. Tomblin and his Dept. of Environmental Protection Sec. Randy Huffman has so far strongly resisted attempts by legislators to roll back implementation of storage tank registration or change SB373. Sec. Huffman recently restated his firm commitment to restoring the Kanawha River to Category A status, so that the river could be used as a secondary water source for WV American Water’s Charleston treatment plant. The WV DEP has come out strongly in defense of the new Aboveground Storage Tank law and created a transparent public process for commenting on the rules to implement that law. But it’s not clear that any of the enforcement problems that helped create the water crisis – a shortage of inspectors and a culture of under-regulation – are being addressed. The DEP’s draft storage tank rules clearly are not serious about forcing storage tank owners to post bonds to cover the costs to clean up a potential spill, as the rules would have required Freedom to post a $9,600 bond to cover what looks to be a multi-million dollar cleanup.
- Have the owners of Freedom Industries been held accountable for their responsibility for the disaster they caused? Like most corporate criminals, the owners and officers of Freedom Industries have tried to evade their financial liability to the taxpayers and citizens of WV using US bankruptcy laws. Within the past month, however, the FBI and federal prosecutor Boothe Goodwin filed criminal charges against the main officers of the corporation for fraud and violation of the Clean Water Act. Criminal penalties levied in the event of verdicts or settlements might require these individuals to contribute their personal funds toward settling claims against Freedom Industries. So far, the creditors’ committee in the Freedom bankruptcy case has not pursued the personal assets of these officers. Criminal convictions could strengthen the case for pulling officers’ assets into the Freedom Industries bankruptcy estate, providing more money to pay damage claims.
- Has WV American Water Company accepted responsibility for its role in the contamination of its water and has WVAW corrected its problems? In December, WVAW announced that it had restored the gas chromatograph equipment that the company had removed in 2004 and has hired an additional technician to run it. This equipment can analyze water that has come into the plant, but does not provide continuous monitoring of water outside the plant’s intake on the Elk River. WVAW also announced in December that it has plans to install this kind of monitoring device, but continuous monitoring equipment is not operating more than one year after the Jan. 9, 2014 contamination. WVAW has not taken aggressive steps to add a second water source or develop an extensive source water protection strategy. The company appears to be waiting to act only on the basis of established deadlines or initiative by others. WVAW has fought the disclosure of information about its unpreparedness before the Freedom leak throughout the current WV PSC general investigation. WVAW has refused to acknowledge that its extremely high 35% leak rate or its failure to maintain adequate levels of stored water within its existing system were the main reasons behind the company’s claim that it could not close its Elk River intake, even for a short time, to allow the heaviest concentrations of the Freedom chemical plume to pass its water plant. Unlike WV American Water, the Morgantown Utility Board and the Putnam Public Service District, both locally owned water utilities, have shown that their customers’ safety is their top priority. They learned from the Kanawha Valley’s water crisis and have installed new equipment and, in the case of Morgantown, begun to develop new source water planning tools to better protect the public.
- Have local government officials taken the initiative to make area residents safer? Charleston city officials’ concern, after the immediate crisis faded, was to perform an image makeover to keep tourism marketing alive in the wake of the disaster. County Commissions in the affected area have largely been silent about strategies for improving responsiveness or helping WVAW create a secondary water source or real time stream monitoring. Local emergency agencies in the Kanawha Valley are the one exception to this complacency. Emergency officials, who responded effectively and efficiently during the crisis, have pushed for more information and coordination in case another drinking water contamination happens again.
- Have citizens gotten serious? Citizens were very serious during the legislative session last year, when SB 373 got progressively stronger as it progressed through the legislature, thanks to citizen pressure. Citizens have also been serious about putting pressure on WV American Water Company which – despite the failure of the state Public Service Commission to order any changes from the utility more than a year after the spill – has started to do a few of the things that citizens have been demanding all along.
So, after a year, we can see who is serious and who is not. Gov. Tomblin’s administration appears to have learned some lessons, but still has problems with sharing information. The Legislature, both past Democratic leaders and the new Republican majority, show signs of putting industry priorities over public safety. Local governments have done little, but emergency agencies have a lot. The federal prosecutor is moving to ensure justice for the victims of Freedom Industries. WV American Water refuses to address many of the issues that surrounded the company’s failure to protect its water system from contamination. Recent press releases indicate the company is finally moving in some of the right directions after a year of stalling and denial.
If a spill like the Freedom Industries leak occurred upstream of the WVAW intake happened today, particularly if the chemical had no color or odor, could we be able to avoid another mass contamination? The answer to that question is still not clear. That answer is not clear largely because the right people are still not serious about providing safe drinking water for all West Virginians.