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    WV is high on environmental hazards but low on environmental justice protections

    June 1, 2022 - Mike Tony, The Charleston Gazette-Mail, W.Va.


      May 31—They stood on the steps of the state Capitol because they've been fighting for other places.

      For Kathy Ferguson, it's been Institute, her historically majority-minority unincorporated community some 10 miles away burdened by environmental hazards from chemical facilities for generations.

      "Folks in Institute have been under siege with regard to chemical pollution since the 1940s," Ferguson said, recalling a Union Carbide plant that federal regulators say emitted some of the highest levels of the carcinogen ethylene oxide in recent years was first built during World War II.

      For Maury Johnson, it's been the creek waters in Monroe County in the path of the still unfinished Mountain Valley Pipeline, the 303-mile, 42-inch-diameter gas pipeline project that he's opposed throughout its eight years of development.

      For Michael Whitten, it's been mine-scarred lands like those around his Boone County home and other fossil fuel projects.

      "I'm here today because of the way I feel when I put my granddaughter on the school bus," Whitten, 74, a former miner himself, said at the rally last Wednesday morning. "I look at kids on the school bus and worry about their future."

      The Capitol steps were the latest stop that morning in a planned 11-day "Walk for Appalachia's Future" along the path of the Mountain Valley Pipeline, which spans 11 counties in West Virginia from the northwestern part of the state to Virginia.

      Wes Holden, a longtime aide to former U.S. Sen. Jay Rockefeller, D-W.Va., lamented what he called the "corporately controlled" state Legislature's weakening of environmental protections. Holden alluded to a legislative rules package approved in the 2022 regular legislative session that weakened water quality standards for suspected cancer-causing chemicals, including some found in coal tar like benzo[k]fluoranthene and chrysene.

      "Tell me, are you benefiting from the changes in these new laws and regulations?" Holden asked the dozen fellow activists on the steps of the Capitol. "I don't think so."

      On the other side of the Capitol Complex just moments later, West Virginia Coal Association President Chris Hamilton was connecting with an audience well-positioned to help determine the state's environmental and energy future.

      Speaking before the West Virginia Public Energy Authority, Hamilton presented PowerPoint slides with nearly two dozen bullet points outlining how his trade association wants the recently reactivated board to promote coal.

      Hamilton urged the authority to consider pursuing partial ownership of a Pleasants County coal-fired plant scheduled to deactivate next year and in-state electric utilities given their commitments to move away from fossil fuels.

      Authority members complimented Hamilton on his hour-long presentation and reaffirmed their support for keeping coal in the state's energy portfolio afterward.

      "Obviously, coal will continue to be there," Kris Warner, a board member by virtue of his position as executive director of the state Economic Development Authority, said after the meeting.

      The environmental group Appalachian Voices advertised the Walk for Appalachia's Future in part as a stand for environmental justice before it started Monday.

      The U.S. Environmental Protection Agency defines environmental justice as "the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies."

      West Virginia environmental advocates say they've been denied that fair treatment in state lawmaking and enforcement processes because they're not getting meaningful involvement. They point to consistent approvals of new and renewed permits for potentially hazardous projects, unaccommodating public hearings and failed attempts to codify greater roles for citizens in the permitting process into law.

      Nicolas Zegre, associate forest hydrology professor at West Virginia University, calls the procedural part of environmental justice "who gets to decide who gets to decide."

      The White House's Justice40 initiative is a goal of providing 40% of the benefits of federal climate and clean energy investments to disadvantaged communities.

      West Virginia environmentalists and concerned citizens have criticized the beta version of the Climate and Economic Justice Screening Tool being used to identify disadvantaged communities for excluding Institute and other communities that have dealt with industrial pollution for decades.

      But the tool still depicts West Virginia as a disproportionately disadvantaged state.

      More than 839,000 of roughly 1.8 million West Virginians — or 46% of the population — live in communities considered disadvantaged, far more than the national clip of 28%. Just over half of West Virginia's census tracts are considered disadvantaged, outpacing the nationwide clip of 31%.

      Census tracts are identified as disadvantaged in one or more categories of criteria if the census tract is above thresholds for one or more environmental or climate indicators and socioeconomic indicators.

      Zegre said he believes that West Virginia's high poverty rate (15.8%, well above the national 11.4% clip) and great vulnerability to flooding and pollution should give the state pause.

      "We need to rethink how decisions are being made," Zegre said.

      Champions of disadvantaged communities say a rigorous rethinking at the state level is needed given the fleeting nature of federal initiatives like Justice40. The initiative isn't a law or rule, and could end instantly under future presidential administrations.

      "[W]hen we talk about the potential to end the Justice40 initiative based on a change of administration, I think that's even more important to be working at your state level, because oftentimes our state and local governments are going to have a much bigger impact on our on our actual day-to-day lives, than the federal government," said Ardie Griffin, policy analyst and legislative director for Emerald Cities Collaborative.

      Emerald Cities Collaborative is a national nonprofit group focused on promoting low-income communities of color in a green energy economy.

      But West Virginia leaders have passed up opportunities to give the state's citizens a greater voice in determining the future of the energy landscape in their neighborhoods. Recurring state statutory snags in limiting environmental hazards have advocates calling for change, but many are skeptical that change will come.

      "A good start to addressing environmental injustice in West Virginia would be to begin enforcing existing laws and to acknowledge the reality of science," Vernon Haltom, executive director of the Naoma-based anti-mountaintop coal mining nonprofit Coal River Mountain Watch, said in an email.

      Meaningful involvement

      The EPA's definition of "meaningful involvement" toward environmental justice includes seeking out the involvement of those potentially impacted and letting the public's contribution influence regulators' decisions.

      Morgan King, climate campaign coordinator for the West Virginia Rivers Coalition, identified bills that stalled during the 2022 state regular legislative session that she said would have advanced environmental justice.

      House Bill 4640 would have required applicants seeking permits from the state Department of Environmental Protection to disclose the purpose of their planned activity "with sufficient specificity" at the permit location.

      The House Energy and Manufacturing Committee never took up the bill, which Democrats introduced in response to the DEP approving an air quality permit for a proposed data processing facility in Morgantown despite little information on the facility's plans.

      House Bill 2234 would have required a public hearing for air quality permits for facilities with an investment value of more than $25 million, or size of 25,000 square feet or more, in the county where the facility is to be located.

      DEP public meetings on permitting decisions and other environmental proposals have gone virtual during the pandemic, increasing access. The Public Energy Authority recently started livestreaming its meetings while also uploading speaker presentations and meeting video recordings on the board's webpage.

      But public hearings on bills advancing through the Legislature during legislative sessions have remained elusive for most West Virginians.

      Senate Bill 694 was a sweeping, controversial measure fast-tracked through the Legislature allowing for unitization of gas and oil wells without 100% support from mineral interest owners in a given formation.

      The bill drew the ire of some royalty owners and property rights advocates who say the bill is unconstitutional and will result in gas companies taking gas from mineral owner tracts without ever paying for it. Two Brooke County farmland owners sued Gov. Jim Justice in federal court on May 13 renewing those arguments.

      The hearing on SB 694 in March didn't come until the bill already had been fast-tracked through the Senate and passed through two committees in the House of Delegates. That hearing required participants to come to the House Chamber, in Charleston, from 9 to 10 a.m. on a Monday on three days' notice.

      A House committee hearing to take public input on a hotly debated bill that eventually passed lifting state restrictions on nuclear power plant construction took place at 10 a.m. on a Friday in the House Chamber, also with three days' notice.

      Zegre said he wants to see more discussion hubs led by and located in communities affected by pollution and flooding — with state-level decision-makers in attendance.

      "It really does need to be a bottom-up approach that meets the top-down approach," Zegre said.

      'Shut them down'

      But activists against mine and chemical pollution have made their overarching concerns clear over the years.

      Coal River Mountain Watch has urged the DEP to stop renewing permits for mines that have emitted coal dust into people's homes, polluted the river watershed and disfigured the valley's landscape.

      In April, the DEP renewed a mine permit for the Lexington Coal Company's Twilight III-A Surface Mine, in Boone County, after it found more than 40 violations across four of the company's permits for active mine sites in the watershed since the start of last year.

      Just three days prior to the permit renewal, the DEP had issued letters to Lexington Coal notifying the company it was delinquent in paying two $22,500 penalties and was prohibited by a state legislative rule from issuing any permit or permit revision to the company as long as the civil penalties remained delinquent.

      The penalties were attached to cessation orders the agency handed down in January after it found that Lexington Coal had failed to backfill and rough-grade mining-affected areas and take other remedial measures at the Twilight III-A and Twilight II surface mines.

      The DEP received more than a dozen comments urging rejection of Lexington's permit renewal request.

      But the DEP ruled that Lexington Coal's application, submitted in November, met requirements in state code setting environmental protection standards for mining.

      DEP chief spokesman Terry Fletcher said in an email that permittees have a "successive right to the renewal of a permit," provided that certain conditions are met, citing state code that grants valid permits "the right of successive renewal upon expiration" unless the terms and conditions of an existing permit are not satisfactorily met.

      Haltom said he wants to see permit renewal codified into West Virginia law as something the state can block. He noted previous EPA fines of $20 million and $27.5 million in respective water pollution settlements with Massey Energy and the company that bought it, Alpha Natural Resources, hasn't prevented scores of environmental violations in the valley in recent years.

      Studies have linked mountaintop coal mining in West Virginia to elevated cancer, low birth weight and mortality rates.

      "These operations are inherently hazardous to the neighboring communities, who pay the price with their health, quality of life, and sometimes their lives themselves," Haltom said. "The best solution is to shut them down."

      Zegre cited a 2019 study that found most West Virginia counties ranked in the top third nationally in increasing rates of health-based drinking water violations from 2016 to 2019.

      That study, by environmental advocacy nonprofit National Resources Defense Council, chemical industry-focused environmental health nonprofit Coming Clean, and the Environmental Justice Health Alliance, in turn, cited a study by the latter group finding that Charleston residents faced the highest cancer risk — 51 cancers per million people — from toxic air pollutants among nine areas studied nationwide.

      The study focused on fenceline zones around highly hazardous facilities across the country.

      DEP Environmental Advocate Ed Maguire has characterized the DEP as powerless to statutorily enforce environmental justice, and the EPA as short on guidance in response to questions from concerned citizens about the DEP's environmental justice oversight.

      "[A] lot of this stuff becomes subjective," Maguire said in a West Virginia Environmental Council-hosted town hall in December. "If you're in the regulatory business, subjectivity is not helpful."

      Other states are being more proactive in defining what environmental justice means and how to achieve it.

      Maya Nye, of Morgantown, grew up in St. Albans across the Kanawha River from the Institute plant. Nye later become spokeswoman of People Concerned About Chemical Safety, a Kanawha Valley grassroots group that promoted environmental justice.

      Nye now is federal policy director for Coming Clean. She touts the potential of legislation like a law New Jersey adopted in 2020 requiring the state to evaluate cumulative environmental and public health impacts when reviewing permit applications.

      The DEP regulates pollution by enforcing standards for individual pollutants from individual facilities, an approach detractors say allows adverse health impacts from high amounts of pollution in an area if no one standard is violated.

      "A law similar to the one passed in New Jersey ... could go a long way to address environmental injustice in West Virginia," Nye said in an email.

      New York passed a forerunner law to Justice40 in 2019 defining disadvantaged communities and requiring the state to direct at least 35% of clean energy, pollution reduction and economic development assistance spending to those communities.

      Zegre praised a bill delivered to Vermont Gov. Phil Scott last week that would create a state environmental justice mapping tool, establish an environmental justice advisory council that includes representatives of a social justice organization, mobile home park residents, municipal government, an organization working on food security issues and other groups.

      "I love the layout of what Vermont is proposing, defining environmental justice, developing an [environmental justice] council that does require this bottom-up and top-down to meet in the middle," Zegre said.

      Given West Virginians' low incomes and high vulnerabilities to pollution and flooding, meeting in the middle is something state advocates are urging their leaders to do as other states write their own environmental justice policies.

      That also means meeting communities where they are.

      "West Virginia is several steps behind the times," Holden said.

      Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or Follow @Mike__Tony on Twitter.


      (c)2022 The Charleston Gazette (Charleston, W.Va.)

      Visit The Charleston Gazette (Charleston, W.Va.) at

      Distributed by Tribune Content Agency, LLC.


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