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Lawsuit targets DEP, DHHR over Crude MCHM

CHARLESTON, W.Va. -- A new legal action accuses two state government agencies of "collective dereliction of their duties" in not taking steps that could have prevented the Jan. 9 Elk River chemical leak that contaminated drinking-water supplies for 300,000 West Virginians.

The emergency petition, filed with the West Virginia Supreme Court, says the Department of Health and Human Resources and the Department of Environmental Protection ignored state laws and rules that required them to protect drinking-water supplies.

The 36-page petition also says state officials ignored warnings that such an incident was possible and did not adequately respond to public concerns after the leak of the coal-cleaning chemical Crude MCHM from the Freedom Industries' tank farm.

"Despite several clear warnings that West Virginia residents in the Kanawha Valley were at imminent risk of toxic exposure, respondents refused to take the actions necessary to protect the public health and the environment as required by statutes and regulations," says the petition, filed Friday.

Lawyers Jennifer Wagner and Bren Pomponio, of the public-interest law firm Mountain State Justice, and Michael Becher and Joe Lovett, from the group Appalachian Mountain Advocates, filed the petition.

The petitioners are two nonprofit groups, Covenant House and the West Virginia Coalition Against Domestic Violence, that serve needy and in-crisis members of the community, and two area residents, Monique Watkins and Virginia Gardner.

In a statement, Covenant House, said, "This is a time of crisis. Our system has failed us. Our water supply was compromised. The public trust breached.

"This has affected every person in our community, and it has impacted the low-wage worker and homeless populations disproportionately," the statement said.

"Every day, more than 200 people count on Covenant House to help find housing, to take a shower, do their laundry, secure food and clothing, or some other emergency subsidence," the statement said. "It is a significant hardship for the low-wage worker to pay for bottled water to drink, to bathe their children in, and to cook."

Named as respondents in the petition were DEP Secretary Randy Huffman, DHHR Secretary Karen Bowling and Dr. Letitia Tierney, the commissioner for DHHR's Bureau for Public Health.

Officials from the agencies did not respond to requests for comment.

Among the specific allegations in the petition:

• Public health officials failed to require adequate emergency response and source-water protection plans for the Elk River water supply.

• The public health bureau did not maintain and update a comprehensive hazardous-materials list that includes materials frequently used in West Virginia and appropriate emergency-response procedures.

• The DEP did not require Freedom Industries to submit pollution-control and groundwater-protection plans for its tank farm, despite its location, 1.5 miles upstream from the public water intake, and did not properly inspect the site to ensure its safety.

• The DEP has not kept the public informed about the cleanup of the Freedom Industries' site, leaving citizens with little information about "whether the spill site poses an ongoing threat to the Elk River and to the downstream drinking-water intake."

• The DEP is violating its duty to protect the existing uses of the Elk River, including its use as a public drinking-water supply.

The petition notes that a 2002 DHHR report documented a variety of potential threats to the Elk River water supply, concluding that it was "highly susceptible to contamination" and identifying the Freedom site as a source of "large volumes of potential contamination."

"Although the [public health bureau] recognized the serious risk of potential spills of contaminants into the source water, including from the Freedom Industries site, it did not take any further action as recommended by the report, including determining the actual risk and consequences of a spill from the chemicals stored at the Freedom facility or other coordination with government agencies," the petition says.

Also, the petition notes that the state government has never acted on a 3-year-old recommendation by the U.S. Chemical Safety Board to create a new chemical-accident prevention program.

The petition asks the Supreme Court to order the DHHR and the DEP to show why the agencies should not be forced to implement the chemical-accident prevention program, require water-protection plans from public water systems, properly monitor the impacts of the Jan. 9 leak and report information from that monitoring to the public.

The lawsuit does not ask for monetary damages.

"Even weeks after the spill, the public has not received any information about the safety of their water except unsupported and general statements about a one-part-per-million safe threshold," the petition says. "Many affected residents still feel unsafe drinking or cooking or bathing with their water and a survey of legislators revealed that none of the legislators who responded were drinking tap water in the affected area.

"The chemical spill and its impacts were avoidable and should have come as no surprise to respondents," the petition says. "Respondents have been advised on numerous occasions to take steps to prevent just such a disaster, and they were aware of the risk to the water supply and other threats to the public health of residents near chemical facilities in West Virginia.

"However, despite their clear duty to act, respondents chose to ignore clear recommendations and their own statutory and regulatory requirements to prevent the disaster," it states. "Further, in the wake of the spill, respondents have failed to meaningfully and accurately disseminate information and otherwise study the impacts of the spill on public health and the environment.

"In order to prevent similar disasters in the near future, respondents must be compelled to comply with their statutory duties to protect the lives, health, and livelihoods of West Virginians from chemical exposure."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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