W.Va. water ban being lifted; potential 'loophole' in spill reporting law


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UPDATE: CHARLESTON, W.Va. -- Gov. Earl Ray Tomblin and other West Virginia officials announced at noon today that the "Do Not Use" advisory for customers of West Virginia American Water is being lifted area by area.

State officials advised that people should pay attention to whether they live in the zones affected -- and to follow other instructions after that to ensure continued safety and health.

Residents were advised to use an interactive we map at westvirginiaamwater.com. The red means don't use. Blue means people can start to flush their water.

West Virginia American Water Co. stressed that the procedure for flushing their household water system is not to be followed until residents are certain the "Do Not Use" order has been lifted for their address.

(Read more on the situation at www.charlestondailymail.com)

Today's earlier story is as follows:

CHARLESTON, W.Va. -- The company responsible for a chemical leak that continues to force 300,000 West Virginians from using their tap water broke the law.

Which law, exactly, is still under investigation.

But state officials don't believe Freedom Industries was required to follow a state law requiring industrial facilities to report an emergency within 15 minutes.

"I think the loophole, if you will, that this facility fell into is because it was not a hazardous material, it flew under the radar," said Secretary Randy Huffman, head of the state Department of Environmental Protection.

This isn't the only potential loophole.

The DEP never inspected the facility because the company didn't produce any chemicals or have any legal emissions.

A different legislative rule states a facility must give "immediate" notice of a spill, but leaves it up to the head of the DEP to determine what "immediate" means in each case.

"I know there's been a violation, because there was a violation when the material hit the stream," Huffman said Sunday night after a press conference at the state Capitol.

Gov. Earl Ray Tomblin and state Senate President Jeff Kessler, D-Marshall, said they are committed to looking at possible law changes.

"I've had my attorneys in over the weekend and they are looking at some potential legislation, because the Legislature is in session right now, and I'm sure there will be many of them calling for similar legislation," Huffman said.

As much as 7,500 gallons of a chemical, known as crude MCHM, leaked Thursday morning from a storage container owned by Freedom Industries into the Elk River. The chemical seeped through and old cement block wall meant as secondary containment and into the water.

DEP officials believe the leak started about 8:15 a.m. Thursday. Huffman said DEP officials arrived on scene at 11:15 a.m.

Freedom Industries didn't report the spill until 12:05 p.m., Huffman said.

"They should have called earlier, there's no question that they should have called earlier," Huffman said.

A portion of state law called "industrial facility emergency event notification and access" says within 15 minutes of an industrial facility learning of an emergency, the facility shall contact the Mine and Industrial Accident Emergency Operations Center or local emergency services by telephone.

Huffman and Jimmy Gianato, head of the state Division of Homeland Security and Emergency Management, said the Freedom Industries chemical doesn't apply to this law.

"There's a 15-minute reporting rule for facilities that have products that are listed on what's called the extremely hazardous substance list, and a chemical list that we specify that deals primarily with hazardous materials," Gianato said.

"This product, based on the Department of Transportation regulations and the EPA, does not list as a hazardous substance."

Other standards, including those set by the U.S. Occupational Health and Safety Administration, do list the material as hazardous, according to the Charleston Gazette.

The law itself does use the phrase "extremely hazardous substance," in its definition of an emergency event. However, it also states the law isn't limited to such materials or other specifically outlined events.

The definition of "industrial facility" in this part of the law has also been questioned. The definition does use the words "storage facilities," though.

The law Huffman, Gianato and others believe actually does apply has a different set of penalties and requirements.

Huffman pointed to a different chapter in state law pertaining to pollution. It states someone who knowingly and willfully violates a relevant legislative rule could face up to three years in prison and a $50,000 fine for each day of violation.

The rule says "each and every person who may cause or be responsible for any spill or accidental discharges of pollutants into the waters" must give immediate notification through the emergency hotline.

Huffman wouldn't say whether he thought Freedom met the criteria for violating the "immediate notification" portion of the law.

"That will be one of the many things that we consider in the coming weeks," Huffman said.

Any fine won't cover the damages caused by the leak, Huffman added.

Reached Sunday, Kessler said he thought the 15-minute reporting law applied.

"For goodness sakes," he said, when told state officials weren't sure that it did.

After leaving early Friday, the Senate is slated for a regular schedule today. Kessler said he planned to look over the law for any loopholes.

He said he'd consider introducing legislation personally after discussing it with his legislative team.

Leadership in the state House of Delegates announced Friday it wants to pursue the creation of a Small Business Emergency Relief Fund.

"We will work to carefully craft legislation that provides a limited, zero-interest loan to small businesses located in an area where a State of Emergency has been declared," Majority Leader Harry Keith White, D-Mingo, said in a press release.

"We are considering a variety of parameters, for instance, setting a cap based on the weekly sales from the same time in the previous year."

Kessler said he hoped such a fund would be available to a wide array of businesses. He agreed with Huffman that Freedom would likely not be able to cover the cost of the damages.

Whatever a review reveals, Kessler is confident the affected customers would have preferred more oversight of the facility.

"I hear some of the mantra in the Legislature from time to time that government needs to get out of the way, and too much regulation and that kind of stuff," Kessler said.

"But boy, I bet you there are 300,000 people in the state who wish we had more regulation of the industry."

No one from Freedom Industries spoke Sunday night at the press conference.

Susan Lavenski, a public relations executive with Charles Ryan Associates, said she'd decided to discontinue representing Freedom Industries.

A message left at the company's main phone line was not returned.

The House will convene briefly at 1 p.m. Monday and then reconvene at 6 p.m. Tuesday, said Stacey Ruckle, spokeswoman for House Speaker Tim Miley. There will be normal business Wednesday, she said.


Dave Boucher: 304-348-4843 or david. boucher@dailymailwv.com. First Published January 13, 2014 12:14 PM

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