CHARLESTON, W.Va. -- Last Monday, Gov. Earl Ray Tomblin stood behind a podium in the West Virginia Capitol and announced his plan for a new program to prevent chemical spills from what he called "unregulated" above-ground storage tanks.
Tomblin said his proposal would give the state Department of Environmental Protection "the tools necessary" to prevent another chemical leak like the one from the Freedom Industries tank farm, which contaminated the Elk River and the drinking water supply for 300,000 West Virginians.
"It was not regulated, and this bill will address that," the governor said later to a small group of reporters.
When asked how he could call the Freedom Industries tank farm -- which held a water-pollution permit approved by the DEP -- "unregulated," the governor had agency Secretary Randy Huffman explain. Huffman carefully clarified what the governor had said.
"Unregulated is probably not the right word," Huffman said. "It was under-regulated."
Policymakers are beginning to respond to the leak of the chemical Crude MCHM into the Elk River, just upstream from the West Virginia American Water regional intake.
Some confusion continues, though, about exactly what authority the DEP had over the facility. A front-page New York Times story, for example, paraphrased Huffman as saying that, "because the facility stored chemicals, but did not produce them, his department had no responsibility for regulating it."
However, in several interviews with the Sunday Gazette-Mail, Huffman and other DEP officials have made it clear -- as Huffman did in his appearance with the governor -- that Freedom Industries was absolutely not unregulated.
"I don't think of them as being unregulated, but as being under-regulated," Huffman said in one discussion.
As debates over future actions move through the Statehouse, the distinction is important. Environmental groups and regulatory experts say that no matter what rules govern Freedom Industries or any other company, those rules mean little unless the DEP becomes more aggressive with inspections and enforcement actions.
"[The] DEP has long been influenced by anti-regulation and pro-industry political pressure," said Pat McGinley, an environmental law professor at West Virginia University's College of Law. "West Virginians can't expect any new law, alone, to change this deep-rooted culture."
Even some political leaders are starting to agree that West Virginia needs to take a closer look at how its political culture influences the DEP's enforcement actions.
"All the rules on the books won't work if there isn't adequate enforcement," said state Senate President Jeff Kessler, D-Marshall.
'They just store things'
In the days immediately after the Elk River leak, DEP officials said an initial review showed that they had not inspected the Elk River tank farm since at least 1991, when it was owned by a different company and was used for a different purpose.
After a more comprehensive review of their records, DEP officials have revealed a series of site visits by inspectors from the agency's Division of Air Quality. Air inspectors were responding to odor complaints from residents -- some of whom reported the now-familiar black-licorice smell of Crude MCHM -- and examined if the site needed a state air-pollution permit. So far, DEP records indicate the agency concluded that the odor complaints were unfounded, and that no new permits were necessary.
"They don't manufacture anything and they don't process anything," the DEP's Huffman said on Jan. 10. "They just store things."
Last week, though, Freedom revealed that it was mixing two chemicals to make a material it called "PPH, stripped," and, in turn, mixing that material with Crude MCHM. Twelve days after the initial leak, Freedom revealed those facts when it disclosed that PPH also leaked into the Elk.
The DEP has not responded to a question about whether mixing those chemicals together should have required an agency permit or not.
What agency officials have disclosed is that Freedom Industries asked for and received DEP approval for registration under a "general permit" program covering storm-water-runoff pollution from industrial facilities.
During a legislative committee meeting Thursday, several lawmakers quizzed Huffman about this permit and what it did -- and didn't -- require of the DEP.
Huffman explained that the permit clearly gave the DEP authority to inspect the site. Then again, Huffman told lawmakers, "I have authority to enter onto any piece of ground in the state of West Virginia, whether it has a permit or not."
The site's storm-water permit also contained three key provisions that are important to remember in the context of the Elk River leak: It mandates that the company submit a storm-water-pollution prevention plan and a groundwater-pollution prevention plan, and it requires that the company immediately report any spills.
'[The] DEP issues these permits'
Early last week, the West Virginia Rivers Coalition and the consulting firm Downstream Strategies issued a report on the leak that pointed a finger at the DEP for not doing enough to use those tools to prevent such an incident.
"[The] DEP issues these permits, and it is [the] DEP's responsibility to enforce these permits," said Evan Hansen, president of Downstream Strategies and co-author of the report.
Hansen said that proper pollution-prevention plans would have required the company to explain the measures it had in place to contain the materials it handled, prevent spills and respond to any spills that did occur. However, Hansen's report indicated that those plans don't appear to have ever been filed with the DEP, and agency officials have not disputed that assessment.
Huffman doesn't dispute that some provisions of the storm-water permit could have helped. He pointed to the requirement to immediately report the leak, which Freedom Industries didn't follow, and the mandate to immediately take steps to adequately contain any spills, something else DEP inspectors say the company ignored.
If those things had been done, Huffman told the Senate Judiciary Committee, they "very possibly could have prevented this from entering the river."