Federal Ruling & WV Homeland Security Protecting State Agency Schemes

West Virginia now has one of the fastest rising cancer rates in the nation. For many years, our beautiful state has been the dumping grounds for extremely toxic extraction industry wastes. So on Jan. 12, Fayette County, which has one of the highest cancer rates in the state, historically passed an ordinance to ban the fluid waste from horizontal hydrofracking (HHF) for natural gas.

However, on June 10, Southern WV District Federal Judge John T. Copenhaver ruled that waste dumping permits issued by the WV Dept. of Environmental Protection (DEP) override the Fayette county commission’s authority to protect county residents from pollution. In striking down a section of West Virginia Code that specifically grants counties such authority, Copenhaver essentially rendered the provisions in Fayette’s ordinance unenforceable.

After cancelling a scheduled hearing, Judge Copenhaver ruled from the bench without taking into consideration three major state regulatory loopholes that seriously compromise public health. One requires that all gas and oil field wastes be classified as non-hazardous, no matter how toxic or radioactive.  Another prevents anyone, including first responders and public service water providers, from ever finding out exactly what chemicals make up HHF fluid wastes. The third allows owner-only monitoring of HHF-wastes.

Thousands of so-called natural gas industry “brine” containers, many located at waste injection sites throughout the state, presently hold radioactive and extremely corrosive materials, including hundreds of different chemicals and heavy metals, many known to be highly toxic.  Yet thanks to vigorous industry lobbying, our DEP does not even require the disclosure of their locations.

After the recent infamous MCHM release into the Elk River, lawmakers and regulators should have learned that the lack of knowledge of exactly what tanks such as these contain poses a very real threat to drinking water supplies. Yet to this day the public is being blocked knowing from what these “brine” tanks actually contain, or even where they are located.

Other WV agencies are involved, too.  For the first time ever, West Virginia’s Source Water Assessment Program, mismanaged by the state Bureau of Public Health, imposes broad non-disclosure agreements on local citizen participants. This requirement essentially prevents the general public from knowing the whereabouts, size, or contents of significant potential pollution sources. And thanks to WV’s Dept. of Homeland Security, state agencies are for the first time ever now exempted from being required to respond to citizen Freedom Of Information Act (FOIA) requests. Essentially preventing citizens from pinpointing regulatory agency shortcomings, this FOIA exemption protects industry from the imposition of new laws which could otherwise properly protect communities.

Sacrifice Zone Options
Sacrifice Zone Options

Meanwhile, concerned citizens wonder if the fear of terrorism isn’t being used to hide the ongoing poisoning of entire communities by DEP permitted industrial dumping.

Judge Copenhaver, who has recused himself from many prior natural gas cases, may have considered the evidence in the Fayette ordinance appeal too informative for the public record. Ruling without hearing scheduled witnesses, Copenhaver prevented getting on the record that the DEP had recently re-issued permits for two Fayette county HHF waste injection wells despite the agency knowing that the previous permits had already allowed the contamination of Wolf Creek, which is located upstream from a major Fayette County public water intake.  Remarkably, the DEP has never even attempted to properly determine whether or not those injection wells continue to leak.

Until Copenhaver’s ruling is successfully appealed, West Virginia’s county commissions are stripped of their authority to protect their communities from similar hazardous waste dump sites.

Back in 2009, DEP coal slurry injection well permits were ordered suspended by WV lawmakers only after the sourcewaters of Rawl, Merrimac, Sprigg, and others had caused a large number of contamination-related illnesses tor residents  in those communities.

There are over 600 similarly permitted HHF injection wells scattered throughout West Virginia, many of which the DEP has refused to identify. Each well site is believed to have an average of five dangerously under-regulated above ground storage tanks.

In beautiful Fayette County there are no other sources of HHF waste. That millions upon millions of gallons of it is being trucked there from out of state should put us all on notice that until it is successfully appealed, Judge Copenhaver’s ruling leaves all West Virginians at risk.

Barbara Daniels,
District 44 House of Delegates Candidate
Richwood, WV.

permalink: http://uptheholler.com/federal-ruling-wv-homeland-security-protecting-state-agency-schemes/