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Originally published January 18, 2014 at 5:18 PM | Page modified January 18, 2014 at 7:09 PM

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Many doubt assurances W.Va. water safe again

West Virginia, with its strong ties to coal and chemicals, has long had a fierce opposition to environmental regulations. It has also been the scene of five major accidents related to coal or chemicals in eight years.

The New York Times

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CHARLESTON, W.Va. — In West Virginia, residents were still reeling from the chemical spill that left more than 300,000 people without usable water for days, many of them frightened and unsure whether official assurances that they could once again safely drink tap water or bathe their children were true.

But in Washington, D.C., on Wednesday, among friends at an event sponsored by the American Coalition for Clean Coal Electricity, West Virginia’s junior senator and former governor, Joe Manchin, was preaching a familiar gospel of an industry under siege by overzealous regulators.

“You feel like everyone’s turned against you,” he said. He assured his audience that he would continue to fight back against proposed new Environmental Protection Agency (EPA) regulations on coal, quoting the state motto in Latin: “Montani semper liberi”: “Mountaineers are always free.”

In an interview the next day, he expounded on the theme. “Coal and chemicals inevitably bring risk, but that doesn’t mean they should be shut down,’’ Manchin said. “Cicero says, ‘To err is human,’ but you’re going to stop living because you’re afraid of making a mistake?”

The spill, which occurred when 7,500 gallons of a chemical used to clean coal leaked from an aging, outmoded storage tank into the Elk River, played out in a state that has often been seen by outsiders as a place apart. West Virginia, with its strong ties to coal and chemicals, has long had a fierce opposition to environmental regulations. It has also been the scene of five major accidents related to coal or chemicals in eight years.

But amid an energy boom that stretches from Pennsylvania to North Dakota and the belief among many conservatives that the nation suffers from too much regulation, the issues that played out have enormous relevance well beyond its borders.

They include all the questions about the incident raised by regulators and environmental critics: Why the tank was so close to a water-treatment plant, how often it was inspected and by whom, the hazard status accorded the chemical inside the tanks, what regulations might have prevented the spill and what would have been their costs.

As Congress this winter considers updating a much-criticized chemical-safety law, the Toxic Substances Control Act, Manchin, a Democrat, is one of the key players.

At the very least, the spill raised concerns for many West Virginians about the state’s attitudes toward regulation. “This ought to be a huge wake-up call,” said Barbara Evans Fleischauer, a Democratic member of the West Virginia House of Delegates. “I don’t think people want the government to get out of the way right now. What we’re supposed to do in state government is protect the health and welfare of our citizens.”

Before entering state politics, Manchin started a coal-brokerage company, Enersystems. His memorable 2010 Senate campaign ads showed him blasting a shotgun at a climate-change bill that would have curbed pollution from coal-fired plants. His Senate financial disclosures state that he made nearly $1.5 million a year in 2011 and 2012 from his coal-brokerage firm.

Bowing to industry

West Virginia’s record of deferring to industry is long and deep, reflecting its economic reliance on coal, chemicals and, most recently, natural gas. The tank farm where chemicals were stored, a mile and a half upstream of the intake of the state’s largest water provider, seems to have fallen outside the bounds of multiple state and federal antipollution laws.

Randy Huffman, the state Cabinet secretary in charge of environmental protection, said that because the facility stored chemicals but did not produce them, his department had no responsibility for regulating it. Other states inspect storage facilities and production ones.

Initially, state environmental officials said inspectors had not visited the site in more than two decades. But Thursday, the state’s Environmental Protection Department said it had made a half-dozen visits since 2001, when the tank farm, which once stored gasoline, was sold and converted to chemical storage. Inspectors checked the air and soil quality, but apparently not the dozen or so tanks.

State officials have also said that a 2008 federal law requiring the tank’s owner, Freedom Industries, to report chemicals stored on-site to the state’s Division of Homeland Security, did not require emergency planning for a spill because the chemical that leaked was not legally designated “extremely hazardous.”

Groundwater in mining regions has been tainted by the practice of pumping wastewater into the ground, where it seeps into wells. In 2010, Manchin, then governor, sued the EPA over tougher water-pollution rules for coal mines that blasted mountaintops and dumped the debris into valley watersheds. The current governor, Earl Ray Tomblin, promised the day before the spill, in his State of the State address, to “never back down from the EPA.”

West Virginia imposes an unusual hurdle for its Environmental Protection Department: Regulations it writes are not enforceable until approved by the Legislature, giving lawmakers influenced by industry lobbyists a chance to revise them. Last year a state regulation requiring natural-gas drillers to disclose the chemicals injected into the ground during hydraulic fracturing was revised at the request of Halliburton, the oil-services company, to keep the disclosure confidential.

In recent years the state’s environmental agency has moved to weaken limits on the amount of aluminum, a mining pollutant, in state waterways. Last year a bill sought by coal lobbyists ordering the department to revise limits on discharges of selenium, which is toxic to fish and expensive to clean up, unanimously passed the House of Delegates and the state Senate.

“A lot of our elected officials think it’s political suicide to take a stand against coal or in favor of the EPA,” said Angie Rosser, executive director of the West Virginia Rivers Coalition, a conservation group.

Coal mining today employs but 4 percent of West Virginia’s labor force. But its symbolic appeal runs deep, and it has long enjoyed an exalted status in state government. As an incoming governor, Manchin named the head of the state coal association, aided by oil-and-gas industry officials, to run the panel setting his administration’s energy and environment policies.

In May 2009, the Environmental Protection Department sued PPG Industries, a Pittsburgh maker of paints, industrial coatings and other products, to stop it from repeatedly dumping illegal amounts of mercury into the Ohio River from a plant at Natrium, about 25 miles south of Wheeling.

The suit, however, was filed at PPG’s request, Huffman told The Charleston Gazette that month, to stave off a threatened lawsuit by two environmental groups.

The two groups had employed a clause in the federal Clean Water Act that allows ordinary citizens to sue for violations when government regulators fail to enforce the law. The act required that PPG receive 60 days’ notice of the planned suit; by intervening before that deadline, the state seized legal control of the issue from the environmental groups and struck its own settlement with the company.

Tepid reform plan

The most obvious candidate for change resulting from the Elk River spill is the nation’s weak and outdated law governing chemical safety. That law, the Toxic Substances Control Act, was passed in 1976 and has not been substantially updated since.

Now, Manchin and Sen. David Vitter, R-La., from another state with major chemical-industry interests, are leading long-delayed efforts to update the law.

Environmentalists complain that the bill, written in close consultation with the American Chemistry Council, would do very little. “The problem is that the bill as currently written is terrible,” said Daniel Rosenberg, an expert in chemical regulations with the Natural Resources Defense Council. “It wouldn’t even guarantee getting additional health information or regulation on MCHM,” or 4-methylcyclohexane methanol, the chemical in the most recent West Virginia spill.

Manchin said outsiders want the energy and chemicals that come from West Virginia while demonizing the industries that create them. “I don’t know where else you want the chemicals to be produced,” he said. “Another country? People say not in my backyard. But in West Virginia, we’re willing to do the heavy lifting.”

Asked about criticism of the state’s environmental record, the Environmental Protection Department issued a statement Saturday saying it “has aggressively pursued rule changes and legislation in recent years to ensure the state’s industries and businesses are operating in ways that are protective of the state’s natural resources.”

For example, it said, Huffman’s office wrote legislation in 2011 enabling the agency to double its staff of oil and gas inspectors monitoring the rapidly growing natural gas industry.

Rebecca Randolph, president of the West Virginia Manufacturers Association, which represents the chemical industry’s interests in the Legislature, said she disagreed that enforcement is lax. “We’re subject to state and federal regulations that are on par with neighboring states,’’ she said. “We go above and beyond what’s required.’’

Critics nevertheless question whether the state’s laissez-faire regulatory culture has worked for a state where Wal-Mart is now the top employer. According to the Census Bureau, West Virginia ranked 47th in median household income in 1969. In 2009, it ranked 49th.

Even if one incident is unlikely to change a culture so entrenched in the state, for now citizens appear spooked, confused and angry — if not entirely sure where to direct that anger. Residents have received conflicting orders on whether they can use their water, schoolchildren are still being given bottled water, and questions have been raised about the adequacy of tests on water safety.

Manchin said Friday that he would co-sponsor modest legislation to regulate storage facilities like the Elk River tank farm, that are close to waterways.

At a gathering Wednesday in Charleston, some 130 people vented their fury.

Karan Ireland, a public-relations executive for a law firm, said she was afraid to drink the water or to let her children drink it. “People are turning on their taps, they’re smelling water that still has the chemical in it and is discolored,” she said after the meeting. “Nobody believes anything anymore. We feel lied to.”

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