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MAP TO PROSPERITY:Reactive or proactive?

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  • Map to Prosperity

    Map to Prosperity

    Thursday, January 2 2014 11:59 AM EST2014-01-02 16:59:08 GMT
    "Map to Prosperity" is a long-term project of The State Journal that will deeply examine government and business in West Virginia — both the perceptions and the reality.
    "Map to Prosperity" is a long-term project of The State Journal that will deeply examine government and business in West Virginia — both the perceptions and the reality.

Can State Government Prevent Crises Instead of Just Responding?

Randy Huffman admits he can be sensitive when people say his agency could have prevented the Elk River chemical spill that contaminated the water supply of 300,000 people this month.

"You've got to give me chapter and verse," said Huffman, who heads the state Department of Environmental Protection. "I need to see the law."

Huffman and other state officials have taken a lot of criticism the past few weeks as the water crisis in the Kanawha Valley has played out.

Much of that criticism revolves around the same point that many people made when interviewed by The State Journal last fall for the "Map to Prosperity" series. State government, they say, reacts to problems instead of anticipating them.

Huffman says they have a point, but he adds it's how our system of government was designed to work.

Plenty of criticism

Evan Hansen, president of the Morgantown-based consulting company Downstream Strategies, says West Virginians expect the DEP to enforce laws that protect the environment.

"Unfortunately, that's not what we're hearing from the DEP," he said in an interview with The State Journal this week. "It starts at the top. The DEP leaders are chosen by the governor. They have made it clear that their intention is to facilitate industry and not to strictly enforce environmental regulations and laws."

And as long as that's the attitude, "bad things will happen," Hansen said.

Gov. Earl Ray Tomblin, Attorney General Patrick Morrisey and Huffman each have complained repeatedly about the Environmental Protection Agency, President Barack Obama and environmental regulations, Hansen said. Five years ago, Huffman testified before a congressional committee that his job is to promote industry, Hansen said.

"With all due respect, (Huffman is) not in charge of the Development Office," he said. "He's in charge of the DEP."

Less than two weeks after the Elk River spill, Downstream Strategies issued a report saying the spill and its aftereffects were a failure of federal and state regulators along with West Virginia American Water Co. The report said the state had authority under three federal laws — the Clean Water Act, the Safe Water Drinking Act and the Emergency Planning and Community Right-to-Know Act — to inspect the tank farm where the spill occurred and to protect the safety of the Charleston region's drinking water.

At a news conference at the Capitol last week, Tomblin and U.S. Sen. Joe Manchin, D-W.Va., discussed state and federal legislation to close gaps in regulation that they said could have prevented the spill. Manchin said people in government took for granted that above-ground storage tanks were strictly regulated in the way underground tanks are, but the Elk River spill showed they are not.

Hansen agrees there is no permit program in the state regulating above-ground tanks, "but what they're fixing in the Legislature is a very narrow part of this problem."

"It's a real opportunity to change the tone," he added. "The governor and the DEP need to state protecting the environment is their No. 1 priority, because if we don't protect the environment, no one's going to want to live here."

As the coal industry declines, the state will need to diversify its economic base, but lax environmental regulation and enforcement will work against that effort rather than help it, Hansen said.

"Who's going to want to move to the Charleston area? Who's going to want to start a business in the Charleston area?" he asked, "The reputation of the whole state has been damaged, and deservedly so, because the state has failed us, and the response to the spill has been lacking."

Taking the heat

Huffman said he expects the kind of criticism his agency has received since the spill.

"It comes with the territory," he said. 

This spill and its aftermath have been unique in their length and in how many people they affected, he said.

"It's been a unique challenge," he said. "I've got a good bunch of folks here. They've stepped up."

But Huffman admits some of the criticism he hears bothers him.

Some people, he said, "are jumping on the bandwagon of hype."

"It's a little bit frustrating to me because I see these people out there," he said. "They have influence in the debate."

As for Hansen's comments that the DEP could have used its authority to prevent the spill, "he has to presume I didn't use it on purpose," Huffman said.

"There are people making claims that we have the authority, that I could have prevented this," he said. "Then they claim we need more authority. That's what happens when you try to mix politics with science.

"Whatever people believe about DEP, they believe, and it's not going to be moved one way or the other by this event. The people who believe DEP and the regulatory agencies are in industry's hip pocket already believe that."

Huffman said if people want to say the DEP could have used its authority to prevent the spill, they need to cite specific sections of state or federal law and how they would have applied to the situation.

Preventing another spill

"What could DEP have done under the regulatory framework?" Huffman asked. "We live in that kind of society where we want to know whose fault it is."

Other agencies, such as the state Department of Health and Human Resources and the Kanawha-Charleston Health Department, are responsible for regulating source water protection. That's not the DEP's job, Huffman said.

Some people believe that if the DEP issues a stormwater runoff permit for a tank farm, then the agency can do anything it wants on the site, but that is not the case, he said.

"We don't have in our state code or our rules any operating requirements for above-ground storage tanks," Huffman said.

The state has adopted federal minimum standards for underground tanks, but there are none for above-ground tanks, he said.

"I say that, it sounds like (I'm) making excuses," he said. "Could the DEP have done something? I could have made them test their tanks. They could have beaten me on appeal.

"If we want to fix it, there needs to be a regulatory framework in place."

The Legislature is considering two pieces of legislation to prevent a similar incident. One was introduced by Sen. John Unger, D-Berkeley. The other was introduced by the governor.

"A key component of that is not going to be site inspections," Huffman said. "The most important thing we can have in these rules is an annual certification that there is integrity in these tanks and containment."

That's what the governor's bill has, Huffman said. The bill would require companies owning or operating tanks to have them certified by registered professional engineers as meeting minimum safety standards.

"Most reasonable people will understand there was nothing that gave the state the authority to tell these people what to do with their tanks," he said. "There will be. We will enforce it, and we will regulate them."

But this will not mean that someday a train won't derail and spill a chemical into a stream and contaminate a town's water, Huffman said. The goal is to minimize risk, not eliminate it, he said.

"There is no such thing as risk elimination in what we're talking about here," Huffman said.

Proactive enough?

"Let's look at where we've been proactive," Huffman said.

First, Huffman mentioned regulating horizontal drilling in natural gas wells. 

About four years after the first gas well was horizontally drilled and hydraulically fractured in the Marcellus Shale region of West Virginia, the state had a law to regulate the activity, he said.

"Twenty years from now, that program will look very different than it does today," he said.

Coal was mined for 100 years before it was regulated, Huffman said. And air and water pollution likewise went on for decades before the first regulations were enacted, he said.

"It has been the nature of this democracy to be reactive," Huffman said.

Huffman said the DEP has a safe dams program to encourage owners of small, privately owned dams to have them inspected and deficiencies corrected. DEP recognizes that some owners, such as homeowner associations, don't have the money to do what is needed.

"With every one that we know about today, we are aggressively trying to bring them into compliance," he said.

Still, the DEP's authority is limited in dealing with privately owned structures on private property, he said. The DEP cannot unilaterally make repairs to privately owned dams, he said.

After an October 2000 incident in Kentucky that poured coal mine sludge into the Big Sandy River, the DEP went throughout the state to make sure similar impoundments were in compliance — again, to minimize risk.

Government is reactive on the micro (small) scale but proactive on the macro (large) scale, Huffman said.

Police and prosecutors have reactive jobs, he said.

"I don't write you a violation for what you might do," Huffman said. "If we had thought about it a year ago, there probably would have been more effort from the county folks planning for an event than on the preventive side."

Local planners would have checked into the possibility of a secondary intake at the water plant, into emergency distribution of water and into other emergency response measures, Huffman said.

"When we sit and look back at Jan. 9, we say, ‘that was obvious.' On Jan. 8, it wasn't obvious. I don't know that I would have thought about above-ground storage tanks."

While Huffman said he's not in charge of damage control on the state's image, he does have a policy for re-assuring the public the state is doing what it can.

"There's nothing you can do except be honest with people and forthright and do the right things so people are protected," he said.