SHEPHERDSTOWN, W.Va. - With $30 million in assets and about $3 million in liabilities, Freedom Industries followed a tried and true coal industry tactic of declaring bankruptcy and moving assets to a new company, rather than face responsibility for its crimes. Freedom Industries is the company responsible for poisoning the drinking water of up to 300,000 residents in nine counties surrounding Charleston, W.Va., from spillage of a stored chemical used in treating coal waste. The owner, Pennsylvania coal mining executive Cliff Forrest, just acquired the company in December 2013.
According to news sources, the chemical that leaked creates bubbles that attract fine coal particles. Coal mining companies can use this to skim off the particles and sell them as fuel. It is a composite chemical and, along with other mining related chemicals, was stored in containers last inspected by state Department of Environmental Protection (DEP) officials in 1991. As Jon Stewart quipped on The Daily Show, "that was six Batmans ago!" Since then the company's permits under the previous owners have been renewed contingent on a requirement to "self-report" any violations or leaks. To evaluate if this is credible regulation, consider how many speeding violations you would "self-report" if there were no highway police.
It's been a pretty good business niche. Freedom Industries buys and stores chemicals manufactured by Eastman Chemical, an international $12 billion business, and Georgia Pacific Chemicals, a unit of the Koch brothers' Georgia Pacific, a global paper product giant. Freedom Industries then markets to some of the country's biggest coal producers.
Since the spill was discovered on Jan. 9, a total of 411 patients had been treated at 10 Charleston area hospitals for reported chemical exposure as of Jan. 18, according to Allison Adler, a spokeswoman for the West Virginia Department of Health and Human Resources (DHHR), and reported by Lori Kersey of the Charleston Gazette. Twenty patients had been admitted to four hospitals. The West Virginia Poison Center had received 2,302 calls about the chemical leak by the evening of Jan. 18. Of those, 1,862 were human-related, 98 were animal-related.
U.S. Attorney Booth Goodwin said in a strongly worded statement Jan. 10:
"Yesterday's release of a potentially dangerous chemical into our water supply has put hundreds of thousands of West Virginians at risk, severely disrupted our region's economy, and upended people's daily lives ... Companies whose facilities could affect the public water supply should be on notice: if you break federal environmental laws, you will be prosecuted. Our drinking water is not something you can take chances with, and this mess can never be allowed to happen again."
In the wake of the calamitous spill, Gov. Earl Ray Tomblin seems shaken and unsure of his ground. His State of the State speech, delivered just 12 hours before learning of the spill, declared, "We won't back down" in his, and the coal industry's, fight against the Obama administration's efforts to enforce the Clean Water Act, for which the West Virginia coal industry has been granted waivers and exceptions for years. Tomblin suggested that people going to hospitals were just "experiencing the flu," or had "not been washing their hands" - but with the poisoned water, where would they? Or, he suggested, they were simply "suffering from anxiety." Despite the massive impact on residents and businesses in the largest population center in the state, Tomblin thought it more important to issue a stronger warning against "overreaching regulation" than against unsafe practices by the coal industry.
Nonetheless a rising tide of distrust, and disgust, at the abysmal performance of state water protections, compelled the governor to propose new legislation "providing new tools" for the state DEP to regulate chemical storage facilities. However, Tomblin's proposal specifically excludes using any regulation to interfere with either coal, or shale gas (fracking), production. His bill calls for creation of special funds to pay for inspection, but no mechanisms to insure the fees are ever collected - a longstanding problem with the existing DEP. No fees, no real inspections. The secretary of the DEP, appointed by the governor, is given full authority to promulgate rules -- but in the past DEP rules have been heavily influenced by industry lobbyists. Lastly, the bill is narrowly focused on large storage tanks and "areas of concern" around public water intakes. It addresses no other threats from other industries to private and public water sources from which West Virginians get their drinking water. The fact that water from Elk River is being piped to communities over 60 miles away gives some evidence of the negative impact of mining and chemical operations on local groundwater resources in numerous counties.
Despite the harsh weather on the Eastern seaboard, Tuesday night found vigils in support of clean water across the state, and around the world, as far away as Bhopal, India, site of the world's worst industrial disaster in 1984, where over 2,200 people were killed by a toxic gas leak.
* Elected officials, agency heads, and members of the Legislature should change their tone and expectations to hold the West Virginia Department of Environmental Protection accountable for fully and consistently enforcing its permits and all environmental laws.
* The governor and Legislature should require that the West Virginia Department of Environmental Protection inspect all National Pollutant Discharge Elimination System-permitted sites, and should immediately inspect the most critical sites.
* The governor and Legislature should prohibit coverage under the general multi-sector industrial stormwater permit for facilities that are located in zones of critical concern, upstream from public water supply intakes.
* The governor and Legislature should require additional permit conditions for facilities such as the Freedom Industries site.
* The governor and Legislature should increase funding and staffing for the West Virginia Department of Environmental Protection's National Pollutant Discharge Elimination System and environmental enforcement programs."
The tide against the coal dictatorship in West Virginia is rising. As Bob Dylan sang, "You better start swimming or you'll sink like a stone, for the times they are a-changing." True enough!
Photo: Don't drink the water! Members of the West Virginia National Guard's Chemical, Biological, Radiological, Nuclear and High-Yield Explosive Enhanced Response Force Package draw water samples from across the Kanawha Valley on Jan. 14 to determine levels of contamination remaining in local water supply following the Jan. 9 chemical leak. (West Virginia National Guard Public Affairs)