What can Gov. Tomblin and the WV Legislature do to make sure a disaster like the Freedom Industries/WV American Water failure never happen again?

Downstream Strategies, a Morgantown, WV research group, specializing in water issues, issued a report on January 20, 2014 with a number of recommendations for getting control over under-regulated or unregulated chemical companies in the state. These recommendations involve policies that can be put in place now, under existing laws and regulations:

Clean Water Act Freedom Industries holds a West Virginia/National Pollutant Discharge Elimination System permit under the Clean Water Act—a registration under the state’s general multi-sector industrial stormwater permit. WVDEP issues and enforces these permits. This permit includes many items related to spills. It also requires immediate reporting of noncompliance that may endanger health or the environment.

Recommendations:


 * Elected officials, agency heads, and members of the Legislature should change their tone and expectations to hold the West Virginia Department of Environmental Protection accountable for fully and consistently enforcing its permits and all environmental laws.
 * The governor and Legislature should require that the West Virginia Department of Environmental Protection inspect all National Pollutant Discharge Elimination System permitted sites, and should immediately inspect the most critical sites.
 * The governor and Legislature should prohibit coverage under the general multi-sector industrial stormwater permit for facilities that are located in zones of critical concern, upstream from public water supply intakes.
 * The governor and Legislature should require additional permit conditions for facilities such as the Freedom Industries site.
 * The governor and Legislature should increase funding and staffing for the West Virginia Department of Environmental Protection’s National Pollutant Discharge Elimination System and environmental enforcement programs.

Safe Drinking Water Act The West Virginia Bureau for Public Health wrote a Source Water Assessment Report for West Virginia American Water’s Charleston system in 2002. According to this report, the system is highly susceptible to contamination. The report delineates a zone of critical concern—a corridor along the Elk River and its tributaries that warrant more detailed management because spills that occur in this zone would reach the public water supply intake very quickly. Approximately 50 potential significant contaminant sources were identified in this zone, including the Freedom Industries site.

While the Source Water Assessment Report was an important first step, it simply presents information. A Protection Plan is needed to develop protective strategies in order to minimize the risk of contamination of the water supply. Such a plan should include contingency planning, alternative sources, and management planning. No Protection Plan for this facility appears to have been written.

Recommendations:


 * WVBPH should update Charleston’s Source Water Assessment Report, and all Source Water Assessment Reports across the state.
 * The governor and Legislature should mandate that the West Virginia Bureau for Public Health or other appropriate state or local entities write Protection Plans and should provide for funding.
 * The governor and Legislature should provide for state-specific protective standards for chemicals used in large quantities in West Virginia.
 * Local emergency planning committees should carefully review Source Water Assessment Reports and take all necessary actions.

Emergency Planning and Community Right-To-Know Act The Emergency Planning and Community Right-to-Know Act helps communities plan for emergencies involving hazardous substances. It requires hazardous chemical emergency planning by federal, state and local governments, Indian tribes, and industry. It also requires industry to report on the storage, use and releases of hazardous chemicals to federal, state, and local governments.

Freedom Industries filed Tier Two Emergency and Hazardous Chemical Industry forms in recent years, which specifically listed MCHM along with 16 other chemicals since 2007. These forms list MCHM as being an “immediate (acute) physical and health hazard” and note the quantity of MCHM stored onsite: between 100,000 and 999,999 pounds on an average daily and maximum daily basis.

Recommendations:


 * The governor and Legislature should support local emergency planning committees and local governments in their planning efforts to manage and minimize risk.
 * Local emergency planning committees should utilize the information submitted on Tier Two forms to manage and minimize risk.