DEP Never Saw Freedom's Pollution Control Plans

Charleston Gazette
1 February 2014
By Ken Ward Jr.

CHARLESTON, W.Va. -- West Virginia Department of Environmental Protection officials never reviewed two key pollution-prevention plans for the Freedom Industries tank farm before the Jan. 9 chemical leak that contaminated drinking water for 300,000 residents, according to interviews and documents obtained under the state's public-records law.

Under a DEP-approved water pollution permit for the site, Freedom Industries was required to prepare a storm-water pollution prevention plan and a groundwater protection plan.

Neither plan was among the documents contained in Freedom's permit files at the DEP's Water and Waste Management office, according to copies of those files released last week in response to a Gazette-Mail Freedom of Information Act request.

The disclosure raises more questions about whether DEP officials used all their available tools to prevent an incident like the leak of what the most recent estimate says was a spill of 10,000 gallons of the coal-cleaning chemical Crude MCHM into the Elk River.

"These plans are the core part of the permit," said Evan Hansen, president of the environmental consulting firm Downstream Strategies, which has been investigating the leak. "If [the] DEP were serious about enforcing this permit, they would have reviewed these plans, especially given that the nature of the site changed ownership and the nature of the operations changed."

DEP officials say that, because the Freedom tank farm's previous owners had received a DEP water pollution permit decades ago, the site was exempt from a 2004 requirement to provide the plans to the DEP.

The requirement for older permits, the DEP says, was simply that companies write the pollution plans and keep them available on site, in case the DEP ever wanted to see them. In this case, DEP officials never did.

DEP officials obtained a copy of the company's stormwater pollution prevention plan, but only after they began investigating the leak more than three weeks ago.
"It would be fair to say the DEP had not seen the stormwater protection plan prior to the spill," said Scott Mandirola, director of the DEP's water and waste division.

After the leak, DEP inspectors also asked for the groundwater protection plan. Freedom still hasn't provided one, DEP officials say.
"That has been documented and will be included in future enforcement actions," Mandirola said.

He said the DEP will take a close look at its existing rules and procedures for stormwater permits as part of its review of the Elk River leak.
"This event, in general, is going to prompt a lot of people to take a closer look at a lot of procedures," Mandirola said. "There's a lot to be looked at."

On Wednesday, the DEP released the materials from its water pollution permit files on the Freedom site -- at least records that it had before the Jan. 9 leak -- in response to a FOIA request. The agency is withholding records generated since Jan. 9, saying they are part of an "ongoing investigation" and are exempt from release as "internal memoranda" under state law.

"[The] DEP believes it is necessary to withhold these communications at this time in order to protect the free exchange of ideas and information as we deliberate to determine what the ultimate enforcement disposition of this matter will be from an administrative, civil and criminal perspective," the agency said in a response to a Gazette-Mail request for the files.

As a bill to set new regulatory requirements for above-ground storage tanks moves through the Legislature, questions continue about the DEP's enforcement of existing rules -- and an existing permit -- that were supposed to govern the Freedom Industries' site.

House Speaker Tim Miley, D-Harrison, sent a Senate-passed storage tank bill to three House committees. Such a move, called "triple-referencing," often is seen as a maneuver to kill a bill.

Miley said his intention isn't to block the storage tank bill but to ensure a complete debate on it. He also said he wants to continue discussions about whether the DEP properly enforced existing regulations that apply to the site.

"My concern is that there may have been plenty of regulations on the books that could have prevented this from happening," Miley said in an appearance last week on the statewide Talkline radio show. "We need to be sure that we're doing what is already required to be done before we start adding additional regulations."
The DEP had approved the Freedom site's request to be registered under a storm-water pollution "general" permit, a less-rigorous program than "individual" permits and a program meant for activities expected to have minimal environmental impacts.

When the company's permit was last renewed, in 2009, Freedom Industries officials checked a box on DEP forms that indicated the storm-water and groundwater plans had been completed and that copies were available at the site.

The permit form notes that, if it's the first time the facility is obtaining a permit, those plans must be submitted to the DEP for agency officials to review. Otherwise, the plans are simply to be kept on site, in case the DEP wants to review them, officials said.

Freedom, though, had obtained a permit in 2004, when it renewed an earlier permit held by the site's previous owner, Pennzoil, as early as 1986, the DEP records show.

Mandirola and other DEP officials have emphasized that the Freedom site's permit covered any potential pollution caused by storm-water runoff from the facility. They've suggested that the storm-water permit had little connection between a leak of product from one of Freedom's tanks.

However, in a report issued Jan. 20, Downstream Strategies and the West Virginia Rivers Coalition argued that the pollution plans required by the storm-water permit were very important in the context of the Crude MCHM leak.

For example, the report explained, the storm-water pollution prevention plan was supposed to inventory the materials handled at the facility and examine loading and unloading operations, and analyze storage activities. It also was supposed to include a discussion of leak prevention and response procedures.

Also, the report explained, the company's groundwater protection plan -- which the DEP still has not been given a copy of -- was to explain what steps were being taken to comply with a variety of pollution, toxic-chemical and waste-handling laws.

"The storm-water permit is designed to prevent the discharge of pollutants off the site," said Hansen, who co-authored the Downstream Strategies-Rivers Coalition report. "Among other things, it requires spill prevention and response procedures to be included in the [storm-water pollution prevention plan]. It also requires immediate reporting of discharges that may endanger health or the environment."

While DEP air-quality inspectors visited the Freedom Industries site a number of times, Hansen noted the absence of water-quality inspections at the facility.
"At the very least, if [the] DEP had inspected the site, their first question should have been to ask for the [storm-water pollution prevention plan] and [the groundwater protection plan], and they should have reviewed them at that time," Hansen said. "But [the] DEP chose not to inspect the site and enforce this permit."
Reach Ken Ward Jr. at or 304-348-1702.