The Freedom Industries’ spill of 10,000 gallons of a toxic chemical into the Elk River in Charleston, West Virginia earlier this year was a wake up call to the political establishment of the state — an establishment that had fostered a culture of de-regulation.
The Freedom Industries’ plant was just a few miles upstream from the private drinking water utility for Charleston — the West Virginia American Water Company. The chemical contaminated the drinking water of 300,000 residents.
As it turns out, the legislature was in town on January 9 — the day of the spill — and for the aftermath.
West Virginia legislators experienced what citizens of the state had felt for generations before — dirty water from polluting industries.
And it opened the eyes and ears of legislators to what citizen groups had been saying for years — be vigilant, be proactive, impose law and order on the industries, or disasters are sure to follow.
Angie Rosser is executive director of one of those groups — the West Virginia Rivers Coalition.
She lives on the banks of the Elk River, about 30 miles upstream from the spill.
Fully two months after the spill, and most people are still not drinking the water, Rosser told Corporate Crime Reporter in an interview last week.
“Some are still not bathing their children in it,” Rosser said. “It’s hard to say how long that will last. People are really disturbed by how little we know about this chemical. People are still presenting symptoms from exposure to the chemical. People are still smelling it coming out of their taps. As long as we’re smelling, it seems obvious that the chemical is still present.”
What has been the law enforcement response?
“There is a federal investigation that has been launched by the U.S. Attorney here in the Southern District of West Virginia — Booth Goodwin,” Rosser said. “The grand jury has issued subpoenas. Other than that, they have not revealed much information. We have been assured that there is a criminal investigation. Our Attorney General, Patrick Morrisey, announced early on that he has also launched his own investigation.”
“Several class action lawsuits have been filed. There is some effort to consolidate those lawsuits. On the grassroots level, people are being educated about how to make a formal complaint to the Public Service Commission about the quality of their water and the fact that they still have to pay for this dirty, poisoned water they are not using. And they are still having to pay. That’s another movement development. And it has been quite inspiring to see how at the grassroots level people are feeling compelled to take action to achieve justice. And that’s something I’ve never seen here to that degree.”
Most drinking water utilities are public. West Virginia American Water is a private company. There has been some public criticism of the company for not adequately screening up river risks.
“There has been a lot of criticism of West Virginia American Water,” Rosser said. “The company has worked hard to deflect that criticism. As recently as late last night they were still defending their decision to not shut down the intake. They say that cutting off the water completely would have posed more of a danger to the public because of fire protection and sanitation concerns. They still feel like they made the right decision. I know they are seriously considering moving the intake or creating a secondary intake. And that is going to cost them $70 million to $105 million.”
“There was a debate in the legislature last night to mandate a secondary intake. It would cost $100 million. And the amendment to the bill said the state would loan that money to the company using money from gas severance taxes. That amendment was defeated. Opponents of that amendment cited the fact that this is a private, for profit company. Why should the taxpayers loan the company this money? But there is a counter argument that anything we mandate that is going to cost a private water company money, eventually that financial burden will be placed on the ratepayers anyway.”
Maybe West Virginia should consider converting it to a public water utility?
“There have been those suggestions,” Rosser said. “But they didn’t make it into the legislative session. But citizens are raising this question — shouldn’t water utilities be public?”
What has been the legislature’s response?
“They were in town on January 9 when this all went down,” Rosser said. “They were personally affected. And that has heightened their awareness about what it means to be an impacted person and what the 300,000 people are feeling here. A bill moved very quickly through the Senate. Senate bill 373. It started opening the conversation in the House. It’s going through a committee process now. It has passed the Judiciary Committee, the Health Committee, and now will go through the House Finance Committee and then to the House floor. What’s going to pass the House is very different from what passed the Senate. So, there will have to be either agreement by the Senate to the House changes, or it will go to a conference committee where those differences will be worked out.”
“The Senate adopted the Governor’s bill. The Governor’s bill created a new regulatory program for above ground storage tanks. No regulation of above ground storage tanks was cited as a contributing factor as to why we had this spill. That bill passed the Senate with several floor amendments that gave industries exceptions to the law. There were over 20 exclusions. That was one of our major concerns with the Senate bill.”
“The House Health Committee did remove most of the exclusions. For the most part, they took our recommendations to strip out most of these exclusions until we can get a sense as to what tanks are out there, what do they hold, what condition they are in, how are they regulated. And then, through the rulemaking process, figure out what tanks to exclude.”
“We also recommend that the state mandate source water protection plans. Around 2002, the Bureau of Public Health did complete source water assessment reports. That was done after 911. There was federal money to identify where the potential significant contaminants were. That’s as far as it went. The next step was supposed to be coming up with a protection plan based on the assessment. That never happened for Charleston. And that was evident in the failures of responding to this emergency. There was no knowledge or coordination. Our emergency planners and the utility itself were surprised that this chemical was located there and could wreak so much havoc.”
“If we have these protection plans in place, the question becomes — what can we do as a community to prevent such a spill from happening? If and when one occurs, then what will be the rapid response to minimize the harm. We are pleased that this has been included in the House bill. It now goes to the Finance Committee. So an outstanding question is how much money the state is willing to put behind making these protection plans happen. But the legislation has the potential to make a difference. Communities will become more aware as to what the threats are to their drinking water intakes. And how they can be more involved in the prevention aspects. All of these plans right now will go through a public input process and a public hearing. It’s going to be a valuable opportunity for citizens to be more aware and become more involved in prevention and watchdogging so that spills and contamination are minimized.”
“Freedom Industries was permitted with the DEP, but only under a general stormwater permit. It was not an individual permit that had any kind of required inspections or site specific condition. What the House has done to strengthen the bill is mandate that any permitted facility within what is called a zone of critical concern — a zone in close proximity to your drinking water intake — that those facilities would be required to have individual permits with required annual inspections and authority to create site specific conditions. Those conditions can be reflective of what the community and the utility have in their prevention plans.”
“All three of those — the regulatory program, the prevention plan and this new concept of requiring individual permits with annual inspections — are supposed to reinforce each other and hopefully minimize the possibility of this happening again.”
But Rosser says that long entrenched political and cultural attitudes are going to be difficult to overcome.
“You have political, state and cultural attitudes of — anti-regulation, anti-EPA, favoring industry over public health and water quality,” Rosser said. “We have seen backsliding over the years in terms of our water quality standards. That anti-regulation culture was created by industry. There were current tools that the government could have used to do a better job of oversight and enforcement. Freedom Industries submitted their forms telling the government that MCHM was on site. It was just apparent that that information didn’t get to the right people. Our DEP Secretary was quoted in the press as saying — we could have minimized or prevented this spill with the regulations we currently have in place. It just didn’t click for any of us that this was a concern.”
“It’s quite amazing. And I am in that boat. I drove by these tanks on a daily basis. And I just never would believe that anything that hazardous would be stored that close to the river. Obviously, it didn’t click for a lot of people. But that’s really no excuse. If anything, it’s been a wakeup call to make it click. We need to start looking at our drinking water sources and what is upstream. I can tell you that I’ve seen a major shift in the rhetoric. It remains to be seen what meaningful action will follow. But I’m encouraged by this legislation in the House.”
[For the complete transcript of the Interview with Angie Rossie, see 14 Corporate Crime Reporter 10(12), March 10, 2014. print edition only.]