West Virginia’s industrial and mining trade groups support the bill, but most people spoke in opposition.
Community and environmental groups testified Friday morning in a public hearing against House Bill 5018.
The bill would limit how community air monitoring data could be used in court cases or to affect regulations. West Virginia’s industrial and mining trade groups support the bill, but most people spoke in opposition.
Bill Bissett, president of the West Virginia Manufacturers Association, compared the situation to a citizen who bought a radar gun to monitor speeding drivers in the neighborhood. Only police can enforce the law, not the citizen.
“We are in no way against community monitoring, but also do not believe that environmental activist groups should become regulatory agencies,” he said. “It is important to recognize that this bill, House Bill 5018, does not stop community air monitoring. Community air monitoring has occurred in the past and it will continue into the future.”
Angie Rosser, executive director of the West Virginia Rivers Coalition, noted, as many other speakers did, that the West Virginia Department of Environmental Protection has a limited number of its own air monitors statewide. The DEP needs citizen input, Rosser said.
“DEP’s resources are limited, they have 18 ambient air quality monitor data across the state,” she said. “This leaves large gaps and information and data and that’s, as it’s been said, where community monitors play an important role in providing information where people live. The legislature and industry should be embracing community efforts.”
Pam Nixon, president of People Concerned About Chemical Safety, said residents use devices called purple air monitors to measure industrial pollution in their communities. Nixon is a former resident of Institute, a Black-majority town where poor air quality has been an issue for decades.
“Low-income communities and communities of color are already vulnerable due to proximity to polluting industries emitting fine particles, which include chemical plants, coal fired power plants, fossil fuel drilling sites for oil and gas mining sites, diesel fuel trucking companies, and asphalt and concrete plants to name a few,” she said.
An attempt by House Democrats to amend the bill failed on Friday. It now goes to third reading.
A group of Democratic West Virginia lawmakers announced plans Monday to introduce legislation to regulate a group of toxic, man-made fluorinated chemicals.
Del. Evan Hansen, who represents most of Monongalia County, and a group of colleagues, said the “Clean Drinking Water Act” would address the release of per- and polyfluoroalkyl chemicals, also called PFAS chemicals. The class of chemicals includes C8, or PFOA, the chemical produced and dumped in the Parkersburg area for decades by chemical giant DuPont.
The effect of the chemical and related events were recently brought to the silver screen in the blockbuster film, “Dark Waters” starring Mark Ruffalo and Anne Hatheway.
Hansen said the bill, which is still being drafted, would require facilities that use or produce PFAS chemicals to disclose that information to the West Virginia Department of Environmental Protection. The DEP would be required to monitor these facilities and regulate their discharges of these chemicals into waterways. Currently, PFAS chemicals are unregulated nationwide.
The second component of the bill would set legally-enforceable drinking water limits, or Maximum Contaminant Levels, for some PFAS chemicals.
The legislation comes at a time when both U.S. Environmental Protection Agency and state regulators are increasingly testing for, finding and seeking regulations for these so-called “forever chemicals.”
In recent years, a growing number of communities have detected PFAS in their drinking water. The chemicals are widely used including in everything from pizza boxes to flame-retardant foam sprays and in nonstick and stain-resistant products like Teflon.
Ohio announced in September it would begin monitoring water systems near known contamination sites. In Berkeley County, federal researchers are currently studying residents’ exposure to C8 after it was found at a water treatment plant in Martinsburg. The contamination was likely due to groundwater contamination from the Shepherd Field Air National Guard Base, which used PFAS-laden firefighting foam.
Research conducted in the Mid Ohio Valley after DuPont’s settlement over C8 contamination linked chemical exposure to six diseases including thyroid disease, as well as testicular and kidney cancer.
“I think we owe it to the citizens of West Virginia, especially considering we were ground zero for the impacts of many of these chemicals, we owe it to the people of West Virginia to take matters into our own hands,” Hansen said.
The EPA is currently weighing how to set drinking water standards for PFOS and PFOA. A handful of states have set their own limits, much lower than the EPA’s current health advisory of 60 parts-per-trillion.
Hansen said if the bill is passed, West Virginia would examine both EPA’s decisions and state actions. He also noted he hopes to put safeguards in the legislation so that if contamination is found, rate payers and cash-strapped municipalities won’t be on the hook for paying for cleanup.
“What we are going to get out of this is the chance of transparency,” said Angie Rosser, executive director of the West Virginia Rivers Coalition, which supports the bill. “Companies will have to tell us what is in our water.”
Rosser and others said clean water is key to boosting the state’s economy.
“The people of our state know polluting industries drive away clean industries,” said Del. John Doyle, a Democrat from Jefferson County.
When asked about the bill’s chances of making its way through the Republican-controlled Legislature, Hansen said he recognized it could be a tough sell, but said he’s open to hearing any ideas from his colleagues across the aisle or other interested groups.
“I don’t think clean drinking water is a partisan issue,” he said.
During the 2020 session, Hansen, who is an environmental scientist, said he also intends to reintroduce a proposed amendment to the state’s Bill of Rights that would enshrine clean air, water and the preservation of the natural environment as constitutional rights for current and future generations.
The measure was introduced last session and had more than 30 co-sponsors. Two other states — Pennsylvania and Montana — have adopted a similar constitutional amendment. If passed, the environmental rights amendment would serve as a guiding principle for state leaders and regulatory agencies.
A bill to roll back regulations of storage tanks is making its way through the legislature. This week the House Judiciary Committee passed a version of Senate Bill 423 by a narrow vote of 13 to 12 without making any significant changes to the proposed legislation.
In the wake of last year’s Freedom Industries spill that contaminated drinking water for 300,000 people in and around the state’s capital city, the Above Ground Storage Tank Act was passed into law. A year later, a set of bills emerged in the House and Senate that aimed to reduce the number of regulated tanks regulated in that act from about 48,000 to about 100, according to policy analysts.
The Department of Environmental Protection reports that they played no part in initiating this new legislative action. Legislators say the 2014 act went too far by requiring duplicitous regulations for industry. Their answer to industrial push-back is now an amended version of Senate Bill 423 which also reduces the scope and stringency of last year’s act.
Credit Downstream Strategies
/
Graphic Detailing the Elk River zone of critical concern, from downstream strategies new report.
1. Regulations don’t matter if there’s weak enforcement.
Paul Ziemkiewicz is the director of the West Virginia Water Research Institute. He remembers presenting information to the Legislature after last year’s chemical spill.
“My point was that we had rules on the books,” Ziekiewicz recalled. “One was federal legislation 40 CFR 112 which is the Oil Spill Control and Countermeasures Act. That requires that all tanks that are 1,320 gallons have secondary containment, regular inspections. It’s a nation-wide rule.”
Ziemkiewicz also points out additional state rules enacted in the mid-1990s that require almost the same measures as the federal rule. He said the MCHM spill in January of 2014 was really the result of inadequate enforcement.
What came to light during the course of the Freedom Industries investigation was that regardless of the rules on the books, the Freedom tanks, perched on the Elk River a mile and a half upstream from a major public water intake did not have a groundwater protection plan as required by state law.
There was a compliance report filed in 2009 by the DEP’s Department of Air Quality that mapped and detailed the site and contents therein. But agency officials say it wasn’t the responsibility of the DEP to inspect storage tanks or secondary containment measures.
That lack of oversight is something last year’s act set out to address.
Credit Bill Hughes
/
2. Protecting groundwater isn’t the objective.
Julie Archer from West Virginia Surface Owners Rights Organization says last year’s bill extended extra protections to not only public water systems, but to groundwater in general.
“It has the potential to improve the inspection and the maintenance of tanks that could affect rural landowners who rely on private water wells for drinking and other uses,” Archer said.
But improving groundwater protection was never the objective, according to lawmakers. Legislators and Secretary Randy Huffman at the DEP indicate that SB 423 is more closely aligned with the original version of legislation Governor Tomblin introduced in 2014—legislation designed to protect public water systems specifically.
Credit Jessica Lilly / West Virginia Public Broadcasting
/
West Virginia Public Broadcasting
Flooding in Wyoming County
3. Five-Hour Zones of Critical Concern. During Fall or Spring?
Huffman says this year’s proposed legislation does allow for adequate regulatory controls for tanks deemed a high risk to public drinking water supplies. SB 423 tries to focus DEP regulatory efforts on tanks in zones where, if there were a spill, contamination could reach public water intake within five hours.
“The zone of critical concern is determined using mathematical model that accounts for stream flows, gradient and 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.”
While lawmakers have been told that about 12,000 tanks currently would fall into these “zones of critical concern,” the five-hour flow detail befuddles the director of the WV Water Research Institute, Paul Ziemkiewicz.
“If a stream is moving at say four miles an hour, then that zone is 20 miles long. On the other hand if it’s moving at one mile an hour, it’s five miles long. So that means you have a different zone of critical concern during winter, with spring run-off, than late summer. If you use the maximum value, there aren’t many places in the state that would not be in a zone of critical concern.”
4. Are we creating loopholes?
Executive director of the WV Rivers Coalition, Angie Rosser, is worried about the bill’s potential to create loopholes for industry. Tank owners of the 12,000 tanks in zones of critical concern, she says, can opt-out of the regulation by naming other regulatory programs that exist.
“We are looking to make sure that if that alternative compliance is pursued that it is at least as stringent as what is in the [Above Ground Storage Act].”
Rosser hopes that when the bill is heard in the House chamber this week, amendments will be adopted that specify more clearly the extent of and frequency of tank inspection as well as language to guarantee public water utilities are fully informed of water contamination threats.
