Chemical spill could alter W.Va. outlook

State's opposition to federal regs tested after latest calamity

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

But in Washington 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 sympathetically. He assured his audience that he would continue to fight back against proposed new Environmental Protection Agency 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," Mr. 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 earlier this month 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.

And as Congress this winter considers updating a much-criticized chemical safety law, the Toxic Substances Control Act, Mr. 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."

Mr. Manchin, who has a thick shock of steel-gray hair and an affable Appalachian drawl, grew up in the coal mining town of Farmington. An uncle and five classmates died in the Farmington mining disaster of 1968 that killed 78 people and led to more federal regulation of West Virginia's mines. Before entering state politics, he 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.

In his maiden speech on the Senate floor, Mr. Manchin called for the repeal of a Clean Water Act regulation on mountaintop mining. His Senate financial disclosures state that he made nearly $1.5 million a year in 2011 and 2012 from his coal brokerage firm. He is the co-sponsor of a bill that would block President Barack Obama's efforts to regulate global warming gases.

West Virginia's record of deferring to industry is long and deep, reflecting its heavy economic reliance on coal, chemicals and, most recently, natural gas. The tank farm where chemicals were stored, just 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 anti-pollution 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 as well as production ones.

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

Far from a hostile act, however, the suit was actually filed at PPG's request, Mr. 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 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 groups, and struck its own settlement with PPG.

Last year, the environmental groups gave notice again that they intended to sue PPG, this time for dumping pesticides into the Ohio -- and again, Mr. Huffman's department imposed its own last-minute settlement.

"The state stepped in with sweetheart deals every time we threatened to sue" PPG, said Derek Teaney, senior staff attorney for Appalachian Mountain Advocates, which assisted the environmental groups' legal plans.

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

But 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 West Virginia spill.

Mr. 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, Mr. 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, 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." She acknowledged there were loopholes that allowed Freedom Industries, which is the owner of the chemical storage tank that ruptured and is not a member of the group, to escape closer scrutiny.

But 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.

And even if one incident is unlikely to change such an entrenched culture, for now citizens appear spooked, confused and angry -- if unsure 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.

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

At a gathering Wednesday in Charleston, some 130 people vented their fury at the water company, the government and the news media.

Karan Ireland, a public relations executive, said she was afraid to drink the water. "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."

Mike Pushkin, a cabdriver and a musician who attended the meeting, said, "I grew up smelling Union Carbide every morning. I make money off the coal industry. Everybody here makes money from coal. I'd just like to see them play by the rules, and make sure there are rules."

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