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DEP, DHHR: Chemical leak legal action now moot

CHARLESTON, W.Va. -- Two Tomblin administration agencies are arguing that passage of new legislation aimed at avoiding a repeat of January's Elk River chemical leak makes moot a legal action accusing those agencies of inaction to prevent such disasters.

Lawyers for the West Virginia Department of Environmental Protection and the Department of Health and Human Resources this week filed formal responses to the action pending before the state Supreme Court.

In its legal brief, the DEP notes that the lawsuit filed against it and the DHHR seeks to force the agencies "to perform duties to protect public health and safety by instituting appropriate and meaningful chemical contamination prevent measures and emergency response mechanisms."

"That relief has already been granted," the DEP said in its brief.

DEP and DHHR lawyers noted the passage by the Legislature of SB373, a broad bill requiring the agencies to institute new inspection procedures, chemical-tank safety standards and drinking-water protection plans.

"It is noteworthy that the Legislature only days ago completed a long, tortuous process of wrangling and public debate to grant [the] WVDEP that authority, which is indicative of the gaps in the previous regulatory format," the DEP lawyers said.

In early February, about a month after the leak at Freedom Industries, lawyers from the public-interest firms Mountain State Justice and Appalachian Mountain Advocates filed their emergency petition with the Supreme Court. They alleged that the DEP and DHHR had not taken available steps that could have prevented the leak or, at least, reduced its impacts.

DHHR lawyers alleged that the petition was based on a "flawed understanding" of that agency's role in protecting the state's drinking-water supply.

For example, the DHHR filing says, that agency was not aware of the exact inventory of chemicals stored by Freedom Industries at its site just 1.5 miles up the Elk River from the West Virginia American Water intake. That information is not filed with the DHHR, the agency said, but with the state Division of Homeland Security and Emergency Management.

The Supreme Court has not announced what action, if any, it will take concerning the petitions filed against the DEP and DHHR.

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


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