Regulating West Virginia's Water

On Monday, March  24, I attended the event "Protecting West Virginia's Water: Legislation, Litigation, and Lessons Learned for the Future of Water Regulation in West Virginia," a symposium sponsored by the West Virginia University (WVU) Environmental Law Society and the WVU College of Law's Center for Energy and Sustainable Development.

The symposium featured a panel of four experts from various fields: West Virginia Senate Majority Leader John Unger (D – Berkeley); Dr. Paul Ziemkiewicz of the West Virginia Water Research Institute; Dr. Rahul Gupta of the Kanawha County-Charleston Health Department; and WVU law professor Patrick McGinley. A representative of the West Virginia Department of Environmental Protection (DEP) was listed as a panel member but was not present for the event. 

The event featured discussion concerning water safety, the value of water as a public resource, and legislative response to the Elk River disaster - a chemical spill from Freedom Industries' above-ground storage tanks upstream from WV's largest public water intake that tainted drinking water for 300,000 Charleston, WV-area residents (McGinley stated that number should be closer to 500,000 when considering those who traveled through and visited the area during the 9 day water usage ban). While neither as informative nor engaging as I had hoped, the event did feature some valuable information. The structure of the symposium was framed by a monologue from each panelist followed by a brief question-and-answer period (the panelists spoke for most of the event, forcing the closing of the Q&A period after two questions). The following is a summary of  each expert’s testimony.

WVU Law Prof. Patrick McGinley

• Enforcement of laws and regulations (or total lack thereof) was the main reason for the chemical spill. 
• Looking to the past for violations:
• Now-defunct Massey Energy had tallied up over 20,000 (yes, twenty THOUSAND) Clean Water Act  (CWA) violations - enough to account for 20 violations every day for 20 years - and the WV DEP did absolutely nothing until the Environmental Protection Agency (EPA) took notice. These violations resulted in fines of $20 million. 
• Alpha Natural Resources (ANR) (the purchaser in the Massey buyout following its dismantling) shamefully garnered 6,000 violations from 800 outfall pipes pumping pollutants directly into streams, resulting in record-setting fines of $27.5 million.
• McGinley: "We have a history in Appalachia of polluting our streams, and the battle of jobs versus water is always happening."
• The cost of pollution is externalized to the public through mitigation, remediation, treatment costs, and most importantly, public health. The legislature must enact laws to internalize the cost and make polluters either pay to pollute (or preferentially) prevent or mitigate degradation of our water supply. 
• McGinley: "You can have jobs and protect the environment, but you can't have both if laws aren't enforced."
• McGinley discussed what he labeled a "climate of lawlessness" where political benefits accrue to politicians and industry while that same industry goes unscathed. 
• Ultimately, the WV Legislature's response to the disaster (Senate Bill 373) falls short because it leaves enforcement of promulgated rules to the DEP - the same agency that turned a cheek to the unfathomable amount of CWA violations by Massey and ANR. 

Dr. Rahul Gupta

• The water crisis was the result of the inherent design of antiquated water regulations. According to Gupta, water regulations were originally designed to protect the public water supply from the tainting and transfer of communicable diseases - not industrial pollution. 
• Gupta repeatedly cited the alarming amount of individuals who sought treatment upon development of fevers, rashes, stomach illness, vomiting and diarrhea - symptoms associated with ingestion or contact of the toxic chemical MCHM.  
• Two hospitals saw two major spikes of visits with reported symptoms:
• After the initial January 9, 2014 spill and poisoning of public water supply
• During the flushing of West Virginia American Water's pipes
• These spikes came in waves as designated zones were flushed throughout the process
• While correlation does not imply causation, the timeliness and geographical location of the spikes congruent to the initial poisoning and subsequent flushing certainly indicates exposure.

Dr. Paul Ziemkiewicz

• Ziemkiewicz's testimony was mostly technical in nature, but he did ease the fears of those worried about long-term effects by showing the relatively-high water solubility of MCHM. Initial reports and media musings pulled speculation from the mostly-blank material safety data sheets (MSDS) for MCHM, stating that the chemical could linger in pipes for (insert sensationalized number here). While it is good to have the public alert to the possible long-term effects of any public health disaster, facts are facts and proper information needs to be disseminated. I didn't get exact numbers from Ziemkiewicz, so this figure is from memory: he made mention the half-life of MCHM in terms of water solubility being somewhere around 60 days. 

WV Senate Majority Leader John Unger

• Unger (D - Berkeley) was arguably the most charismatic of the group, with his passion shining through his speeches. As politicians regularly do, Unger promoted his work on SB 373 and cited past work on other water-related legislation or projects. 
• Unger: States need not only protect water as a critical resource, but must treat water and pollution sources as well. 
• SB 373 passed both houses of the WV legislature unanimously - a huge feat when considering the overwhelmingly pro-industry leanings of the bicameral institution. According to Unger, this was primarily due to the collective power of the public eye. The chemical spill opened a policy window - an event that sheds light on an issue of concern and builds enough awareness and support for immediate response - that forced the legislature to act in favor of public opinion (which, naturally, is in unanimous support of clean water). 
• Perhaps Unger's best idea involves cataloging water as a resource through a water inventory. No detail was given as to the scope of this project, but development of a water inventory could lead to cataloging of pollutants and critical areas of concern. 
• Unger: The inventory would require reporting and maintenance of science-based management plans. 

Science-based management is exactly what West Virginia needs in a dark and dusty time. A well-informed and empowered citizenry is required to check and enact these quintessential resource plans. Collaborative government fostering citizen engagement and public-private partnerships are successful methods that encourage productivity in the civil, governmental, and private spheres. The public should not expect clean water -  it must demand it. The concluding half of demand is following through and taking an active role in fulfilling a need. This is when citizen engagement doubles as a watch dog on governmental systems. Left unregulated, any system will fail over time. This truth holds across disciplines; across sectors; across biomes. After the blame is placed and the wounds are licked, the public must gather and petition the government for a redress of grievances – a quintessential element of the First Amendment. Because along with free speech and free press should come the right to clean water.

Everything Just Fine

According to an Associated Press (AP) story out of Washington, Alpha Natural Resources Inc. (ANR) and dozens of its subsidiaries have agreed to pay a $27.5 million fine as well as spend $200 million to reduce illegal toxic discharges across Appalachia. This agreement will cover a five state region comprised of Pennsylvania, West Virginia, Virginia, Kentucky, and Tennessee - arguably the heart of Appalachia and the focal region of this blog.

According to the Environmental Protection Agency (EPA), this will be the largest fine ever levied by the federal agency - and it's about time. Frequently referred to as an environmental sacrifice zone, Appalachia has powered the lights and relentless consumer lifestyle of city slickers and suburbanites by destroying its resource-laden lands for over a century.

While the fine may seem significant and even hefty when compared to other infractions, it becomes a drop in the bucket when looking at ANR's financials - the company pulled in an impressive $1.1 billion in 2013.
Which means the fine is an astonishing 0.003% of ANR's net income in 2013. Not gross income or operating income, but NET INCOME - the amount the company reports as profit.

So basically what we're seeing is a ladybug landing on the wrist of an industrial behemoth. To believe this fine is sending a message is naive. To believe we're hitting them where it hurts is idiotic. ANR, like now-defunct Massey Energy and many other destructive companies before them, will happily pay this fine and continue business as usual. After all, it is financially smarter for companies to pay fines as opposed to the expensive practice of obeying safety standards and enacting proper remediation techniques. Considering the massive profits many of these companies rake in year after year, perhaps it is time to end the practice of fines and require that these regulations be actively followed and shutdown facilities indefinitely that violate- or have responsible parties face jail time. If federal employees can be sentenced to jail for negligence or fraud, why should private managers and executives who knowingly eschew public safety not face the gavel?

What raises the need for further research and discussion is the $200 million in waste reduction fees. The AP story simply mentions that the mine operators will install wastewater treatment systems and "take other measures" aimed at reducing pollutant discharge from 79 active mines and 25 coal processing states in the region. The scope of this agreement will dictate its financial impact on ANR and its environmental impact on Appalachia. If ANR is ponying up these dollars as part of an accelerated program to implement federal mandates, then the cost does not have a net negative effect. If this agreement is a penalization on Alpha, then we need to view it as a sunken cost because the damage has already been done, and these systems should have been in place and operational decades ago.